Strand/BRC Group, LLC v. Board of Representatives ( 2022 )

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THE STRAND/BRC GROUP, LLC, ET AL. v.
BOARD OF REPRESENTATIVES OF
THE CITY OF STAMFORD
(SC 20578)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.*
Syllabus
Pursuant to the Stamford Charter (§ C6-30-7), ‘‘[i]f [20] percent or more of
the owners of the privately-owned land in the area included in any
proposed amendment to the Master Plan, or the owners of [20] percent
or more of the privately-owned land located within [500] feet of the
borders of such area, file a signed petition with the Planning Board . . .
objecting to the proposed amendment, then said decision shall have no
force or effect but the matter shall be referred by the Planning Board
to the Board of Representatives . . . . The Board of Representatives
shall approve or reject such proposed amendment at or before its second
regularly-scheduled meeting following such referral.’’
The plaintiffs, owners of certain real property in the city of Stamford,
appealed to the trial court from the decision of the defendant board of
representatives, which had rejected the decision of the city’s planning
board to approve the plaintiffs’ application to amend the city’s master
plan. In their application filed with the planning board, the plaintiffs
sought an amendment to the master plan in order to modify the land
use categories of their properties, which previously had been the site
of a recycling center, to allow for high density residential development.
The planning board then submitted its own application, seeking to mod-
ify the land use categories of adjacent properties to allow for similar
development. The planning board conducted separate hearings on the
two applications and approved the amendments proposed therein by
separate motions, reclassifying the relevant properties to allow for high
density, multifamily residential development. Thereafter, an individual
affiliated with a local neighborhood organization filed a single protest
petition, signed by owners of property adjacent to the plaintiffs’ proper-
ties, with the planning board pursuant to § C6-30-7, challenging the two
amendments to the master plan approved by the planning board. The
planning board referred the protest petition to the board of representa-
tives pursuant to § C6-30-7, and a legislative officer for the board of
representatives determined that the petition was valid as to the amend-
ment pertaining to the adjacent properties because it met the signature
requirement set forth in § C6-30-7 but that it was invalid as to the
amendment pertaining to the plaintiffs’ properties because it did not
meet the signature requirements for the subject area. Nonetheless, the
board of representatives subsequently voted to verify the validity of the
protest petition. The board of representatives then voted on the merits
of the protest petition and rejected the planning board’s approval of
the amendments to the master plan pertaining both to the plaintiffs’
properties and the adjacent properties. On appeal from the decision of
the board of representatives, the trial court concluded that the board
of representatives did not have the authority to determine the validity
of the protest petition because, once the petition was filed with the
planning board, the charter charged the board of representatives only
with determining the substantive issue of whether the proposed amend-
ments should be approved or rejected. The court rendered judgment
sustaining the plaintiffs’ administrative appeal, from which the board
of representatives appealed. Held:
1. The trial court correctly concluded that the board of representatives
lacked authority to assess the validity of a protest petition that had
been referred to it by the planning board: although the charter allows
opponents of an amendment to the master plan to challenge the proposed
amendment by filing a valid protest petition with the planning board,
once the protest petition is referred to the board of representatives, the
language of § C6-30-7 of the charter authorizes the board of representa-
tives only to ‘‘approve or reject [the] proposed amendment’’ and not
the protest petition itself, which is merely the procedural vehicle to
put the amendment before the board of representatives for review;
moreover, the charter provisions require the planning board to verify
the procedural validity of a protest petition before referring that petition
to the board of representatives; accordingly, the board of representatives
acted outside of the powers granted to it by the charter and overstepped
its authority by purporting to verify the validity of the protest petition
referred to it by the planning board, and its vote on the validity of the
protest petition was improper.
2. The board of representatives could not prevail on its claim that, even if
it did not have authority to decide the validity of the protest petition,
it nonetheless properly exercised its authority under the charter to
decide the merits of the plaintiffs’ application by rejecting the planning
board’s amendment to the city’s master plan under the plaintiffs’ applica-
tion, and, accordingly, the trial court properly sustained the plaintiffs’
appeal: under § C6-30-7 of the charter, a protest petition is valid and
subject to referral by the planning board only if it is timely filed and
signed by either 20 percent or more of the owners of the privately owned
land in the area that is the subject of the proposed amendment to the
master plan or signed by the owners of 20 percent or more of the
privately owned land located within 500 feet of the borders of such
area, and, because a valid protest petition is a condition precedent to
the authority of the board of representatives to vote on the merits of
an amendment, that board’s vote on the merits of an amendment con-
tained in an invalid petition is void; moreover, the signature requirements
in § C6-30-7 are not a mere formality but serve an important substantive
purpose, namely, limiting the authority conferred on the board of repre-
sentatives by ensuring that review of an amendment to the master plan
by that board is triggered only if there is a sufficient number of owners
of private property within a defined geographical area with interests
directly affected by the proposed amendment, and, because those
requirements were intended to be mandatory rather than directory, the
board of representatives did not have discretion to act on the proposed
amendment notwithstanding the legal invalidity of the protest petition;
furthermore, this court previously had held that the signatures in a
single protest petition challenging two distinct amendments cannot be
aggregated to meet the threshold signature requirements set forth in
§ C6-30-7, and, in the present case, it was undisputed that, insofar as
the protest petition challenged the amendment approved in the plaintiffs’
application, the petition did not contain the threshold number of signa-
tures required to permit the planning board to refer the petition to the
board of representatives.
(One justice dissenting)
Argued September 10, 2021—officially released March 15, 2022
Procedural History
Appeal from the decision of the defendant rejecting
a decision by the Planning Board of the City of Stamford
to amend the city’s master plan to permit certain resi-
dential development, brought to the Superior Court in
the judicial district of Stamford-Norwalk and trans-
ferred to the judicial district of Hartford, Land Use
Litigation Docket, where the case was tried to the court,
Hon. Marshall K. Berger, Jr., judge trial referee, who,
exercising the powers of the Superior Court, rendered
judgment sustaining the appeal, from which the defen-
dant, on the granting of certification, appealed. Affirmed.
Patricia C. Sullivan, for the appellant (defendant).
David T. Martin, for the appellees (plaintiffs).
Opinion
ECKER, J. The dispositive issue in this appeal is
whether the defendant, the Board of Representatives
of the City of Stamford (board of representatives), had
the authority to approve a protest petition that objected
to master plan amendments approved by the Planning
Board of the City of Stamford (planning board). The
plaintiffs, The Strand/BRC Group, LLC, 5-9 Woodland,
LLC, Woodland Pacific, LLC, and Walter Wheeler Drive
SPE, LLC, filed an application with the planning board
to amend the master plan of the city of Stamford (city).
Shortly afterward, the planning board filed its own
application to amend the city’s master plan. After the
planning board approved both applications with some
modifications, local property owners filed a protest
petition under § C6-30-7 of the Stamford Charter (char-
ter). The board of representatives determined that the
protest petition was valid and rejected the planning
board’s approval of the amendments. The plaintiffs
appealed from the decision of the board of representa-
tives to the trial court, which sustained the plaintiffs’
appeal. We affirm the judgment of the trial court.
The underlying facts are undisputed. The plaintiffs
own parcels of real property in the city located at 707
Pacific Street; 5, 9, 17, 21, 23, 25, 29, 39 and 41 Woodland
Avenue; and 796 Atlantic Street. In October, 2018, the
plaintiffs proposed an amendment to the city’s master
plan to modify their properties’ land use categories
(Application MP-432) to allow high density residential
development on the site, which previously had been
used as a recycling collection and disposal center. Spe-
cifically, the plaintiffs sought to modify their properties’
land use categories from category 4 (residential—
medium density multifamily), category 6 (commer-
cial—neighborhood), and category 9 (urban mixed-
use), to category 5 (residential—high density multifam-
ily) and category 9, which would allow for more dense
development. The planning board thereafter submitted
its own application to modify the land use categories
of adjacent properties from categories 4 and 6 to cate-
gory 9 (Application MP-433).1 The proposals contained
in the respective applications, though plainly related,
were two different amendments contained in two differ-
ent applications from two different applicants. Applica-
tion MP-432 was filed separately from Application MP-
433 and advertised to the public independently. The
planning board conducted public hearings on both
applications, after which it approved them by separate
motions insofar as they each sought a change to land
use category 5.2 The planning board published separate
legal notices of the approval of each amendment.
Shortly thereafter, Susan Halpern, vice president of
the South End Neighborhood Revitalization Zone Initia-
tive, filed a single protest petition signed by adjacent
property owners, challenging the planning board’s
approval of Applications MP-432 and MP-433 pursuant
to § C6-30-7 of the charter, which provides in relevant
part that, ‘‘[i]f twenty (20) percent or more of the owners
of the privately-owned land in the area included in any
proposed amendment to the Master Plan, or the owners
of twenty (20) percent or more of the privately-owned
land located within five hundred (500) feet of the bor-
ders of such area, file a signed petition with the Planning
Board within ten days after the official publication of
the decision thereon, objecting to the proposed amend-
ment, then said decision shall have no force or effect
but the matter shall be referred by the Planning Board
to the Board of Representatives within twenty days
after such official publication, together with written
findings, recommendations and reasons. The Board of
Representatives shall approve or reject such proposed
amendment at or before its second regularly-scheduled
meeting following such referral. . . .’’ Pursuant to § C6-
30-21 of the charter, the decision must be made by an
‘‘affirmative vote of a majority of the entire membership
of said Board . . . .’’ See generally Benenson v. Board
of Representatives, 223 Conn. 777, 781, 612 A.2d 50(1992) (describing protest petition process).
Pursuant to § C6-30-7, the planning board referred
the protest petition to the forty member board of repre-
sentatives on the same day it was received. The legisla-
tive officer, Valerie T. Rosenson, for the board of repre-
sentatives reviewed the validity of the protest petition
and determined that it was valid as to Application MP-
433 because it had been signed by 33 percent of the
property owners in the subject area relevant to Applica-
tion MP-433 but invalid as to Application MP-432
because it had not been signed by 20 percent of the
property owners in the 500 foot border of the area or
20 percent of the property owners in the subject area
relevant to Application MP-432.3
Approximately ten days later, the city’s special coun-
sel, James Minor, submitted a memorandum, recom-
mending that the board of representatives separately
address each of the two applications referenced in the
protest petition because the applications ‘‘involved sep-
arate applicants, application numbers, property bound-
aries, amendments, legal notices and decisions.’’ Addi-
tionally, Attorney Minor pointed out that, pursuant to
Stamford Ridgeway Associates v. Board of Representa-
tives, 214 Conn. 407, 572 A.2d 951 (1990), and Hanover
Hall v. Planning Board, 2 Conn. App. 49, 475 A.2d 1114,
cert. granted, 194 Conn. 805, 482 A.2d 710 (1984) (appeal
dismissed March 5, 1985), the board of representatives
must determine if it has authority to consider the protest
petition by ascertaining whether it contains a sufficient
number of signatures on the basis of ‘‘the area where
the specific amendment is located,’’ as opposed to the
area that may be affected by the change.
The issue concerning the validity of the protest peti-
tion was referred to the board of representative’s land
use-urban redevelopment committee (committee), which
voted unanimously to reject the protest petition with
respect to Application MP-432 and to accept the protest
petition with respect to Application MP-433. Following
a public hearing, at which various property owners
expressed their disapproval of both amendments, the
board of representatives voted to send Application MP-
432 back to the committee for reconsideration. The
committee reconsidered its decision to reject Applica-
tion MP-432 and ultimately approved the protest peti-
tion as it applied to Application MP-432. On the same
day, the board of representatives convened a special
meeting to determine the validity of the protest petition,
at which it voted to verify its validity by a vote of seven-
teen to twelve. The board of representatives later voted
on the merits of the protest petition and rejected the
planning board’s approval of Application MP-432 by a
vote of twenty-one to eleven and Application MP-433
by a vote of twenty-three to twelve.
The plaintiffs appealed to the trial court from the
rejection of Application MP-432 by the board of repre-
sentatives.4 The plaintiffs challenged the authority of
the board of representatives to review the planning
board’s decision on numerous grounds, and the parties
agreed to address that issue as a threshold matter before
reaching the merits. Pursuant to Benenson v. Board of
Representatives, supra, 223 Conn. 777, the trial court
determined that ‘‘the board [of representatives] had no
authority to determine the validity of the petition and
[that] its action was improper’’ because, ‘‘[o]nce the
petition was filed with the planning board, the only
charge for the board [of representatives] was to deter-
mine the substantive issue, i.e., the proposed amend-
ments.’’ The court then determined that, even if the
board of representatives had the authority to vote on
the validity of the protest petition, ‘‘[t]he vote was not
sufficient [because] it failed to garner a majority of the
entire forty person board or twenty-one votes.’’5 See
Stamford Charter § C6-30-21 (requiring majority vote of
entire board of representatives ‘‘in deciding all mat-
ters’’). Accordingly, the trial court sustained the plain-
tiffs’ appeal. This appeal followed.6
On appeal, the board of representatives claims that,
regardless of whether it lacked authority to decide the
validity of the protest petition, it nonetheless had
authority to rule on the merits of Application MP-432,
which was duly rejected by a majority of that board,
i.e., twenty-one members. The plaintiffs respond that
the board of representatives lacked authority to rule
on the merits of Application MP-432 because the charter
does not authorize that board to vote on the validity of
a protest petition, and, in the absence of a valid petition,
the board of representatives lacked the authority to
reach the merits of the application. Relatedly, the plain-
tiffs argue that the protest petition was invalid because
it lacked the requisite number of signatures to trigger
referral by the planning board under the charter and,
accordingly, that there was ‘‘no procedural vehicle to
put the amendment before the board [of representa-
tives] for review.’’ Alternatively, if the board of repre-
sentatives had the authority to vote on the validity of
the protest petition, the plaintiffs contend that its
approval of the protest petition by a vote of seventeen
to twelve was invalid because the petition required an
affirmative vote of twenty-one board members.
The board of representatives, in considering the pro-
posed amendment, was ‘‘called [on] to perform a legisla-
tive function.’’ (Internal quotation marks omitted.)
Benenson v. Board of Representatives, supra, 223 Conn.
783; accord Stamford Ridgeway Associates v. Board
of Representatives, supra, 214 Conn. 421–22; Burke v.
Board of Representatives, 148 Conn. 33, 39, 166 A.2d
849 (1961). Because the board of representatives was
acting in a legislative capacity, the decision of the board
‘‘must not be disturbed by the courts unless the party
aggrieved by that decision establishes that the [board]
acted arbitrarily or illegally.’’ (Internal quotation marks
omitted.) Protect Hamden/North Haven from Exces-
sive Traffic & Pollution, Inc. v. Planning & Zoning
Commission, 220 Conn. 527, 543, 600 A.2d 757 (1991);
see Campion v. Board of Aldermen, 278 Conn. 500, 527,
899 A.2d 542 (2006) (‘‘[c]ourts will not interfere with
. . . local legislative decisions unless the action taken
is clearly contrary to law or in abuse of discretion’’
(internal quotation marks omitted)). If the board of
representatives exceeded the scope of its permissible
authority to act under the charter, then its decision
was contrary to law and an abuse of discretion. See
Stamford Ridgeway Associates v. Board of Representa-
tives, supra, 422 n.7.7
‘‘[A city] charter . . . constitutes the organic law of
the municipality.’’ (Citation omitted.) West Hartford
Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 742,
462 A.2d 379 (1983). ‘‘[A] city’s charter is the fountain-
head of municipal powers . . . . The charter serves as
an enabling act, both creating power and prescribing
the form in which it must be exercised. . . . Agents of
a city, including [the board of representatives], have
no source of authority beyond the charter.’’ (Citations
omitted; internal quotation marks omitted.) Stamford
Ridgeway Associates v. Board of Representatives,
supra, 214 Conn. 423. ‘‘[T]heir powers are measured
and limited by the express language in which authority
is given or by the implication necessary to enable them
to perform some duty cast upon them by express lan-
guage.’’ (Internal quotation marks omitted.) Perretta v.
New Britain, 185 Conn. 88, 92–93, 440 A.2d 823 (1981);
see Thomson v. New Haven, 100 Conn. 604, 606, 124
A. 247 (1924) (‘‘[m]unicipal corporations created by
charter derive all their powers from the charter under
which they act’’).
The proper construction of the charter presents a
question of law, over which our review is plenary. E.g.,
Kiewlen v. Meriden, 317 Conn. 139, 149, 115 A.3d 1095(2015). ‘‘In construing a city charter, the rules of statu-
tory construction generally apply. . . . In arriving at
the intention of the framers of the charter the whole
and every part of the instrument must be taken and
compared together. In other words, effect should be
given, if possible, to every section, paragraph, sentence,
clause and word in the instrument and related laws.’’
(Internal quotation marks omitted.) Fennell v. Hartford,
238 Conn. 809, 826, 681 A.2d 934 (1996); see General
Statutes § 1-2z.
I
We first address whether, pursuant to the charter,
the board of representatives has the authority to assess
the validity of a protest petition that has been referred
by the planning board. ‘‘[I]n interpreting [charter] lan-
guage . . . we do not write on a clean slate, but are
bound by our previous judicial interpretations of this
language and the purpose of the [charter provisions].’’
(Internal quotation marks omitted.) Commissioner of
Public Safety v. Freedom of Information Commission,
312 Conn. 513, 527, 93 A.3d 1142 (2014). In Benenson
v. Board of Representatives, supra, 223 Conn. 777, this
court addressed the board of representatives’ authority
to review a protest petition under a former provision,
§ C-552.2,8 of the charter. Section C-552.2 provided in
relevant part that, if a valid petition is filed ‘‘with the
zoning board . . . objecting to the proposed amend-
ment, said decision shall have no force or effect but
the matter shall be referred by the zoning board to
the board of representatives . . . together with written
findings, recommendations and reasons. The board of
representatives shall approve or reject such proposed
amendment at or before its second regularly scheduled
meeting following such referral.’’ (Internal quotation
marks omitted.) Id., 780 n.3. On the basis of the plain
language of § C-552.2, we concluded that ‘‘[t]he question
before the board [of representatives] was not the peti-
tion, which indicated the property owners’ objection to
the zone change, but whether the zone change should
be approved. The petition was merely the vehicle that
brought the issue before [said] board. This is made clear
in § C-552.2, which provides that after the petition is
referred to the board [of representatives, it] shall
approve or reject such proposed amendment . . . .
The charter does not provide for the approval or rejec-
tion of the petition itself.’’ (Emphasis altered; internal
quotation marks omitted.) Id., 783; see Burke v. Board
of Representatives, supra, 148 Conn. 39 (‘‘The manifest
legislative intent expressed in the . . . charter is that
the board of representatives, in considering an amend-
ment to the zoning map, shall review the legislative
action of the zoning board on [its] written findings,
recommendations and reasons. The question before the
board of representatives is whether to approve or to
reject the amendment.’’).
The relevant charter provision at issue in this appeal
is essentially the same as the charter provision that we
interpreted in Benenson. Both § C-552.2 and § C6-30-7
allow opponents of an amendment to the zoning plan
or the master plan of the city, respectively, to challenge
the proposed amendment by filing a valid protest peti-
tion with the zoning board or the planning board, as
the case may be. Once the protest petition has been
referred to the board of representatives, the language
of § C6-30-7, like the language of § C-552.2, authorizes
only that the board of representatives approve or reject
the amendment, not ‘‘the ‘petition’ itself.’’ (Emphasis
added.) Benenson v. Board of Representatives, supra,223 Conn. 783; see Stamford Charter § C6-30-7 (‘‘[The
protest petition] shall be referred by the Planning Board
to the Board of Representatives within twenty days after
. . . official publication, together with written findings,
recommendations and reasons. The Board of Represen-
tatives shall approve or reject such proposed amend-
ment at or before its second regularly-scheduled meet-
ing following such referral.’’). Thus, the board of
representatives lacks the authority to assess the validity
of a protest petition after it has been duly referred by
the planning board.
As the trial court pointed out, ‘‘this leaves the ques-
tion of who had authority to determine the validity of
the petition . . . .’’ Our review of the charter leads us
to conclude that its provisions require the planning
board to verify the procedural validity of a protest peti-
tion before it refers the petition to the board of represen-
tatives. Section C6-30-7 provides that the planning
board ‘‘shall’’ refer a protest petition to the board of
representatives only if two requirements are met: (1) the
petition is signed by the requisite number of property
owners in the subject area, and (2) the petition is filed
with the planning board within ten days after the official
publication of the planning board’s decision.9 Once a
protest petition has been referred, the authority of the
board of representatives is limited to either ‘‘approv[-
ing] or reject[ing]’’ the proposed amendment. Stamford
Charter § C6-30-7. Thus, the board of representatives
overstepped its authority by purporting to verify the
validity of the protest petition.
It is well established that municipal authorities are
‘‘confined to the circumference of those [powers]
granted and may not travel beyond the scope of [the]
charter or in excess of the granted authority.’’ (Internal
quotation marks omitted.) Highgate Condominium
Assn. v. Watertown Fire District, 210 Conn. 6, 16–17,
553 A.2d 1126 (1989). ‘‘[When] the town charter pre-
scribes a particular procedure by which a specific act is
to be done or a power is to be performed, that procedure
must be followed for the act to be lawful . . . .’’ Miller
v. Eighth Utilities District, 179 Conn. 589, 594, 427
A.2d 425 (1980); see Burke v. Board of Representatives,
supra, 148 Conn. 42 (‘‘[when] the charter of a municipal-
ity provides that action of the legislative body shall be
by ordinance or resolution, it must act in the manner
prescribed’’); Food, Beverage & Express Drivers Local
Union No. 145 v. Shelton, 147 Conn. 401, 405, 161 A.2d
587 (1960) (charter is city’s enabling act, and, ‘‘[when]
the charter points out a particular way in which any
act is to be done, the prescribed form must be pursued
for the act to be lawful’’). Because the board of repre-
sentatives was acting outside of the powers granted by
the charter, we conclude that its vote on the validity
of the protest petition was improper.10
II
The board of representatives contends that, regard-
less of whether it had the authority to decide the validity
of the protest petition, it plainly had the authority to
decide the merits of Application MP-432, which is
exactly what it did when a majority voted to reject the
planning board’s amendment to the city’s master plan
under Application MP-432. It argues that its vote on the
validity of the protest petition was at worst ‘‘a nullity’’
that must be ‘‘ignored’’ and, therefore, that the trial
court improperly failed to address the substantive issue
of whether the board of representatives properly
rejected Application MP-432 on the merits. The claim,
in essence, is ‘‘no harm, no foul’’—the board of repre-
sentatives had authority under the charter to approve
the protest petition, and it did so by majority vote.
This argument might well be persuasive if the protest
petition at issue, as it relates to Application MP-432,
had been a legally valid petition pursuant to the charter.
But, for reasons we discuss next, the petition protesting
the amendment approved under Application MP-432
was invalid as a matter of law, and the board of repre-
sentatives’ approval of that invalid petition cannot be
sustained as a result.
Section C6-30-7 of the charter authorizes the planning
board to refer a protest petition to the board of repre-
sentatives only if it is timely filed and signed by (1)
‘‘twenty (20) percent or more of the owners of the
privately-owned land in the area included in any pro-
posed amendment to the Master Plan,’’ or (2) ‘‘the own-
ers of twenty (20) percent or more of the privately-
owned land located within five hundred (500) feet of
the borders of such area . . . .’’ The planning board
has twenty days to refer the protest petition to the board
of representatives, which then must either ‘‘approve or
reject such proposed amendment . . . .’’ Stamford
Charter § C6-30-7; see Benenson v. Board of Represen-
tatives, supra, 223 Conn. 783. The failure of the board of
representatives to timely approve or reject the proposed
amendment is ‘‘deemed as approval of the Planning
Board’s decision.’’ Stamford Charter § C6-30-7.
The signature requirement set forth in the charter
serves an obvious and important purpose. The board
of representatives cannot exercise its authority to
accept or reject a proposed amendment to the master
plan at will. See Stamford Ridgeway Associates v.
Board of Representatives, supra, 214 Conn. 424 (noting
that petition requirements of analogous charter provi-
sion governing protest petition for zoning map amend-
ments determines ‘‘authority of the board of representa-
tives’’ to accept or reject proposed change). Instead,
§ C6-30-7 confers a limited authority on the board of
representatives, which may be exercised only if a suffi-
cient percentage of the owners of private property
within a defined geographical area—an area in or proxi-
mate to the affected area—sign and timely file a protest
petition with the planning board.11 See id., 413. The
language of the charter seeks ‘‘to provide affected land-
owners a right to appeal a proposed [amendment]’’ by
requesting reconsideration by the board of representa-
tives after a threshold requirement has been met.
(Emphasis added.) Id., 432; see Steiner, Inc. v. Town
Plan & Zoning Commission, 149 Conn. 74, 76, 175 A.2d
559 (1961) (protest petitions are designed ‘‘to afford
protection to [nearby] property owners against changes
to which they object’’); Warren v. Borawski, 130 Conn.
676, 681, 37 A.2d 364 (1944) (observing that ‘‘[t]he pur-
pose of [a New Britain ordinance permitting the town
council to vote on a proposed zoning amendment] if a
protest is filed by owners of 20 [percent] of the property
affected is to give some protection to those owners
against changes to which they object’’ (emphasis
added)). The signature requirement is not a mere for-
mality but a substantive provision of the charter
intended to ensure that review by the board of represen-
tatives is triggered if, and only if, there is a sufficient
number of owners of private land with interests directly
affected by the proposed amendment. See Stamford
Ridgeway Associates v. Board of Representatives,
supra, 426 (construing analogous charter provision gov-
erning protest petitions for zoning amendments to pre-
vent improper procedures from frustrating purpose of
provision to serve interests of owners of private land
most affected by amendments).12
To give § C6-30-7 its intended and obvious meaning,
it is clear that a protest petition is valid and subject to
referral by the planning board only if it contains the
required number of signatures. See id., 413 (explaining
that sufficient signatures are needed for board of repre-
sentatives to reconsider amendment);13 Burke v. Board
of Representatives, supra, 148 Conn. 35 (explaining that
referral is made ‘‘[i]n th[e] event’’ that protest petition
meets signature requirements); see also Blaker v. Plan-
ning & Zoning Commission, 219 Conn. 139, 148, 592
A.2d 155 (1991) (‘‘[a] protest petition is not presump-
tively valid’’).14 In the absence of the required number
of signatures, a protest petition cannot properly be
referred to the board of representatives, and, therefore,
that board cannot properly reach the merits of the
amendment challenged by the protest petition. See Wol-
dan v. Stamford, 22 Conn. Supp. 164, 167, 164 A.2d 306(1960) (concluding that ‘‘the petition did not contain
the signatures of owners of 20 [percent] of the land
within 500 feet,’’ as required by charter, and, therefore,
‘‘the matter was not properly before the board of repre-
sentatives’’). Because a valid protest petition is a condi-
tion precedent to the authority of the board of represen-
tatives to vote on the merits of an amendment, that
board’s vote on the merits of an amendment contained
in an invalid petition is void.
The dissent contends that the board of representa-
tives, as a legislative body comprised of elected offi-
cials, has discretion to act on the proposed amendment
notwithstanding the legal invalidity of the protest peti-
tion. This is so, the dissent argues, because the petition
requirements set forth in the charter are merely ‘‘direc-
tory’’ and nonsubstantive. We disagree. The board of
representatives is entitled to discretion when acting in
its legislative capacity, but it is not at liberty to act in
contravention of charter provisions expressly limiting
that authority to specified conditions. Nor are that
board’s legislative actions insulated from judicial
review when it has exceeded its authority under the
express provisions of the charter. See Parks v. Plan-
ning & Zoning Commission, 178 Conn. 657, 661, 425
A.2d 100 (1979) (‘‘[t]he broad discretion of local [munic-
ipal] authorities acting in their legislative capacity is
not . . . unlimited’’); see also Stamford Charter § C2-
10-1 (‘‘The legislative power of the City shall be vested
in the Board of Representatives. No enumeration of
powers contained in this Charter shall be deemed to
limit the legislative power of the Board except as specif-
ically provided in this Charter.’’ (Emphasis added.)).
The distinction that our case law makes between
‘‘directory’’ and ‘‘mandatory’’ provisions in statutes or
charters cannot avoid or render benign the charter vio-
lation that occurred when the board of representatives
acted on a proposed amendment that was not properly
before it due to the legal defect in the protest petition.
We have held that ‘‘[t]he test to be applied in determin-
ing whether a statute is mandatory or directory is
whether the prescribed mode of action is the essence
of the thing to be accomplished, or in other words,
whether it relates to a matter of substance or a matter
of convenience. . . . If it is a matter of substance, the
statutory provision is mandatory. If, however, the legis-
lative provision is designed to secure order, system and
dispatch in the proceedings, it is generally held to be
directory, especially [when] the requirement is stated in
affirmative terms unaccompanied by negative words.’’
(Internal quotation marks omitted.) Lauer v. Zoning
Commission, 246 Conn. 251, 262, 716 A.2d 840 (1998).15
‘‘Stated another way, language is deemed to be manda-
tory if the mode of action is of the essence of the
purpose to be accomplished by the statute . . . but
will be considered directory if the failure to comply
with the requirement does not compromise the purpose
of the statute.’’ (Citation omitted.) Angelsea Produc-
tions, Inc. v. Commission on Human Rights & Oppor-
tunities, 236 Conn. 681, 690, 674 A.2d 1300 (1996).
The express signature requirements in § C6-30-7 are
elaborate in detail and crafted to achieve a manifestly
substantive purpose. The charter specifies the precise
numerical and geographical requirements that must be
satisfied by the signatories before the protest petition
can trigger referral of the proposed amendment to the
board of representatives. These charter requirements
are not imposed for ‘‘convenience and dispatch’’ or ‘‘to
ensure the orderly review of amendments by the board
of representatives,’’ as the dissent suggests. Instead, as
we previously discussed, the purpose of the signature
requirement is to limit the authority of the board of
representatives to reject an amendment to the master
plan, once approved by the planning board, to situa-
tions in which a protest petition is signed by a signifi-
cant percentage of the persons most affected by the
amendment (i.e., 20 percent of the owners of privately
owned land in the area included in the proposed amend-
ment or located within 500 feet of the borders of
such area).16
The dissent is correct that the detailed requirements
in § C6-30-7 governing protest petitions are not accom-
panied by an explicit statement containing negative or
prohibitory language, but negative or prohibitory lan-
guage of this sort is not dispositive of our analysis,
particularly when, as here, the substantive nature of
the requirement is clear. See Blake v. Meyer, 145 Conn.
612, 616, 145 A.2d 584 (1958) (‘‘[i]t is clear that the
provision under consideration is mandatory, not merely
directory, even in the absence of prohibitory or negative
language’’). The absence of negative or prohibitory lan-
guage, in short, does nothing to alter our conclusion
that the signature requirements in § C6-30-7 of the char-
ter serve an important substantive purpose and were
intended to be mandatory rather than directory.
This brings us to the merits of the plaintiffs’ core
challenge to the validity of the protest petition, namely,
that the petition challenging the amendment approved
in Application MP-432 is legally invalid because it lacks
the requisite number of signatures.17 The issue, properly
framed, is easily resolved under our case law because
it is undisputed that, insofar as the protest petition
challenged Application MP-432, in particular, it did not
contain the threshold number of signatures required to
permit referral to the board of representatives.18 As the
trial court noted, the record indicates that the protest
petition was valid and subject to referral only if the
two different amendments contained in the respective
applications, Applications MP-432 and MP-433, are con-
sidered collectively instead of separately. See footnote
5 of this opinion.
Our precedent has spoken on the board of representa-
tives’ authority to simultaneously vote on multiple zon-
ing amendments, whether contained in one or multiple
applications, as challenged in a protest petition. In
Stamford Ridgeway Associates v. Board of Representa-
tives, supra, 214 Conn. 409, we addressed whether, pur-
suant to a former provision of the charter, § C-552.2,
the board of representatives has authority ‘‘to vote on
separate zone changes [involving multiple amend-
ments] contained in one zoning application or whether
the board of representatives must act on the entire
application,’’ even though the single application con-
tained several distinct amendments. Section C-552.2,
which included essentially the same relevant text as
§ C6-30-7, and was the same provision at issue in Benen-
son; see footnote 8 of this opinion; provided that, ‘‘if
twenty percent or more of the owners of the privately-
owned land in the area included in any proposed
amendment’’ or ‘‘owners of twenty percent or more of
the privately-owned land located within five hundred
feet of the borders of such area’’ timely file a signed
petition objecting to the proposed amendment, the peti-
tion shall be referred to the board of representatives.
(Emphasis added; internal quotation marks omitted.)
Stamford Ridgeway Associates v. Board of Representa-
tives, supra, 409 n.1; cf. Stamford Charter § C6-30-7
(requiring, among other things, signatures from ‘‘twenty
(20) percent or more of the owners of the privately-
owned land in the area included in any proposed
amendment’’ (emphasis added)). Because the word
‘‘amendment’’ has been ‘‘interpreted . . . as effecting
a change in existing law,’’ we reasoned in Stamford
Ridgeway Associates ‘‘that the [20] percent requirement
in § C-552.2 is to be measured by the areas that were
changed or rezoned’’ in connection with each individual
amendment, rather than all the areas contained in the
entire application. (Internal quotation marks omitted.)
Stamford Ridgeway Associates v. Board of Representa-
tives, supra, 425–26. We concluded that the board of
representatives properly voted on ‘‘each separate zone
change [amendment] within one application for which
a valid protest petition has been filed.’’ Id., 436.
Stamford Ridgeway Associates makes it clear that
the relevant charter language requires the board of
representatives considering a protest petition to treat
each amendment individually instead of aggregating
multiple amendments and voting on them collectively.
‘‘If we were to construe ‘amendment’ in § C-552.2 to
mean . . . [all amendments in] the entire application
. . . it would lead to bizarre and irrational results and
frustrate the purpose of the charter provision’’ by
enabling ‘‘a municipal agency to [e]nsure passage of
a highly objectionable zoning amendment by simply
combining it with another large, unobjectionable
amendment. A statute must not be construed in a man-
ner that would permit its purpose to be defeated.’’
(Internal quotation marks omitted.) Id., 426. Further-
more, ‘‘the use of the singular form of the word ‘amend-
ment’ shows an intent to refer to only one amendment
or one single zone change.’’ Id., 430. In light of the plain
language and purpose of the charter, we held that the
board of representatives properly ‘‘vote[d] on each sep-
arate zone change encompassed in [one single] applica-
tion . . . .’’ Id., 433.
Pursuant to Stamford Ridgeway Associates, the sig-
natures on a protest petition challenging two distinct
amendments, contained, respectively, in Applications
MP-432 and MP-433, cannot be aggregated to meet the
threshold 20 percent requirements under § C6-30-7 of
the charter. Because it is undisputed that Application
MP-432, standing alone, lacked sufficient signatures to
warrant referral to the board of representatives under
the charter, we conclude that the protest petition was
invalid as to Application MP-432. Accordingly, the board
of representatives lacked the authority to vote on the
merits of Application MP-432, and the trial court prop-
erly sustained the plaintiffs’ appeal from that board’s
decision.
The judgment is affirmed.
In this opinion ROBINSON, C. J., and McDONALD,
MULLINS, KAHN and KELLER, Js., concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices McDonald, D’Auria,
Mullins, Kahn, Ecker and Keller. Although Justice Ecker was not present
when the case was argued before the court, he has read the briefs and
appendices, and has listened to a recording of oral argument prior to partici-
pating in this decision.
1
The adjacent properties are located at 701 and 705 Pacific Street; 13 and
43 Woodland Avenue; 0, 784 and 804 Atlantic Street; and 12, 18 and 20
Walter Wheeler Drive.
2
The planning board concluded that category 9 was ‘‘too intense for this
area . . . .’’ Accordingly, ‘‘instead of . . . categor[ies] 5 and 9 for the par-
cels requested, the [planning] board adopted . . . category 5 for all of the
parcels and rejected the request . . . [for] category 9.’’
3
According to Rosenson, only 6.77 percent of the property owners in the
500 foot border area, and none of the property owners in the subject area
of Application MP-432, signed the petition.
4
Neither the plaintiffs nor the planning board appealed from the decision
of the board of representatives rejecting Application MP-433. Therefore,
that board’s decision on Application MP-433 was not before the trial court
and is not at issue in the present appeal.
5
Accordingly, the trial court determined that it was ‘‘unnecessary . . .
to reach the issue of whether the protest petition, as applied to the plaintiffs’
application, was invalid because it did not have the required signatures.’’
Nonetheless, the trial court observed that ‘‘the record clearly indicates that
. . . the board [of representatives] ignored the advice of its able counsel
. . . and improperly counted the signatures [on] the protest petition and
applied them to the plaintiffs’ and the planning board’s applications in
combination instead of to each application separately.’’ (Citations omitted.)
6
The board of representatives appealed from the judgment of the trial
court to the Appellate Court, which granted that board’s petition for certifica-
tion to appeal pursuant to General Statute § 8-8 (o). We transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
7
The dissent contends that we do ‘‘not engage with or follow [the] reason-
ing’’ of the case law governing judicial review of legislative action, citing
LaTorre v. Hartford, 167 Conn. 1, 355 A.2d 101 (1974), and Mills v. Town
Plan & Zoning Commission, 145 Conn. 237, 140 A.2d 871 (1958), overruled
in part on other grounds by Mott’s Realty Corp. v. Town Plan & Zoning
Commission, 152 Conn. 535, 209 A.2d 179 (1965). Neither LaTorre nor Mills
required this court to examine the scope of a municipal body’s authority
to act under an applicable charter provision. The pertinent cases, cited in
the body of this opinion, establish that (1) the proper inquiry in the present
context is whether the board of representatives acted arbitrarily or illegally,
and (2) under that standard, an action of the board of representatives is
‘‘illegal’’ if undertaken in violation of the requirements of the municipal char-
ter.
8
‘‘Section C-552.2 of the . . . charter provide[d]: ‘After the effective date
of the master plan, if the owners of twenty per cent or more of the privately-
owned land in the area included in any proposed amendment to the zoning
map, or if the owners of twenty per cent or more of the privately-owned
land located within five hundred feet of the borders of such area, file a
signed petition with the zoning board, within ten days after the official
publication of the decision thereon, objecting to the proposed amendment,
said decision shall have no force or effect but the matter shall be referred
by the zoning board to the board of representatives within twenty days after
such official publication, together with written findings, recommendations
and reasons. The board of representatives shall approve or reject such
proposed amendment at or before its second regularly scheduled meeting
following such referral. When acting upon such matters the board of repre-
sentatives shall be guided by the same standards as are prescribed for
the zoning board in section 550 of this act. The failure of the board of
representatives either to approve or reject said amendment within the above
time limit shall be deemed as approval of the zoning board’s decision.’ ’’
Benenson v. Board of Representatives, supra, 223 Conn. 780 n.3.
9
Because the planning board referred the protest petition to the board
of representatives, we need not address the rules and procedures that would
govern any appeal from the planning board’s refusal to refer a protest petition
to the board of representatives.
10
In light of our conclusion, we need not address whether the board of
representatives’ approval of the validity of the petition by a vote of seventeen
to twelve was an ‘‘affirmative vote of a majority of the entire membership
of [that] [b]oard’’ under § C6-30-21 of the charter.
11
The dissent criticizes our reliance on Stamford Ridgeway Associates,
contending that ‘‘[i]t was not this court that said that [sufficient signatures
in a protest petition are required to trigger review by the board of representa-
tives]. Rather, that came from an opinion by Attorney Robert A. Fuller . . . .
’’ Footnote 6 of the dissenting opinion. The dissent ignores that we expressly
relied on Fuller’s analysis to reach our conclusion that the ‘‘charter permits
the board of representatives to vote on separate zone changes contained
in one zoning application’’ if there are sufficient signatures with respect to
each separate zone. Stamford Ridgeway Associates v. Board of Representa-
tives, supra, 214 Conn. 409. We quoted Fuller at length and stated that ‘‘we
agree with the parties that Fuller’s analysis . . . presents the most reason-
able and rational interpretation’’ of the charter and ‘‘strikes a balance
between the common good and public interest in zoning, and the legitimate
private interest of property owners adversely affected by a proposed
change.’’ (Internal quotation marks omitted.) Id., 436–37. In light of this
explicit adoption of Fuller’s analysis, we reject the dissent’s suggestion that
we have misinterpreted Stamford Ridgeway Associates.
12
The dissent observes, and we agree, that an amendment to the master
plan may affect ‘‘the interests of innumerable Stamford residents on issues
of economics, environment, and population density, to name but a few.’’
Footnote 5 of the dissenting opinion. But this court does not get to determine
which Stamford residents are sufficiently affected by a proposed amendment
to be eligible to sign the protest petition that would authorize the board of
representatives to accept or reject the amendment. The charter makes that
determination, and the relevant charter provision very clearly does not
provide all Stamford residents with a right to protest the decision of the
planning board to the board of representatives. Under the plain language
of § C6-30-7, that right is limited to a specific percentage of owners of
privately owned land within a defined geographic proximity of the ‘‘the area
included in any proposed amendment’’ or ‘‘within five hundred (500) feet
of the borders of such area . . . .’’
13
The dissent contends that ‘‘Stamford Ridgeway Associates makes clear
that the signature provision is not an aggrievement, condition precedent,
or limitation provision. Rather, it protects affected landowners nearby by
empowering them to obtain greater review by the board of representatives,
not less,’’ and that ‘‘[i]t cannot, therefore, be said that the signature provision
is a matter of substance or that the full legislative scheme evinces an intent
to impose a mandatory requirement.’’ (Footnote omitted.) The basis for this
contention eludes us. Stamford Ridgeway Associates involved valid protest
petitions signed by the requisite number of ‘‘owners of property . . . who
were adversely affected by the proposed rezoning.’’ Stamford Ridgeway
Associates v. Board of Representatives, supra, 214 Conn. 410. The problem
was that multiple zone changes had been combined into a single zoning
application, and, even though the protest petitions were valid as to each
individual zone change, they were invalid as to the application as a whole.
The issue on appeal was whether the signature requirement pertained to
each individual zone change or to the whole application. See id., 409. To
resolve that issue, we analyzed the purpose of the signature requirement
and the function that it was intended to serve. We concluded that the
signature provision serves an important substantive purpose and that con-
struing it in such a manner as to apply to the application as a whole ‘‘would,
as a practical matter . . . completely [frustrate]’’ that purpose. Id., 426. We
relied on the opinion rendered by the board’s independent counsel, Attorney
Robert A. Fuller, to conclude that, ‘‘[i]f a large percentage of the area included
in the application was not proposed for a zone change (for example, the
entire city of Stamford) . . . it would be impossible to obtain enough signa-
tures to meet the [20] percent requirement within the ten day limitation
[period] set by the charter to petition the board. Moreover, the property
owners who were not affected by any of the zone changes or amendments
or those who are comfortable with their zone change will be very reluctant
[to sign] a petition.’’ (Internal quotation marks omitted.) Id.; see footnote
11 of this opinion.
Inherent in our holding in Stamford Ridgeway Associates was our conclu-
sion that a protest petition must contain ‘‘enough signatures to meet the
[20] percent requirement’’ and that, if there were an insufficient number of
signatures, the signatories would have no ‘‘right to appeal to the board’’ of
representatives. (Internal quotation marks omitted.) Stamford Ridgeway
Associates v. Board of Representatives, supra, 214 Conn. 426. The dissent
is correct, of course, that the signature provision protects affected, nearby
owners of land by ‘‘empowering them to obtain greater review by the board
of representatives,’’ but this is true only if the requisite number of those
owners sign the petition. Any other reading of the charter renders those
requirements meaningless.
14
Contrary to the dissent’s assertion, our holding in Burke does not support
its thesis. In Burke, we addressed whether ‘‘the board of representatives
act[ed] arbitrarily and illegally in failing to give notice and to provide a
hearing before taking action to reject [a zoning] amendment . . . .’’ Burke
v. Board of Representatives, supra, 148 Conn. 37. We answered that question
in the negative because there were ‘‘no specific provisions for notice and
hearing by the board of representatives, and we cannot write such provisions
into the charter by judicial fiat.’’ Id., 40. In contrast, in the present case,
there is a specific provision in the charter, providing for referral to the
board if ‘‘twenty (20) percent or more of the owners of the privately-owned
land in the area included in any proposed amendment to the Master Plan,
or the owners of twenty (20) percent or more of the privately-owned land
located within five hundred (500) feet of the borders of such area, file a
signed petition with the Planning Board within ten days after the official
publication of the decision thereon, objecting to the proposed amendment
. . . .’’ Stamford Charter § C6-30-7. We cannot erase this explicit provision
from the charter by judicial fiat any more than we can write some other
provision into the charter. See Burke v. Board of Representatives, supra,
40; see also Kiewlen v. Meriden, supra, 317 Conn. 151 n.11 (‘‘we are not at
liberty to ignore the plain language of’’ municipal charter).
15
Our prior case law has looked at a number of factors to determine
whether the provision can be deemed mandatory or directory. ‘‘These
include: (1) whether the statute expressly invalidates actions that fail to
comply with its requirements or, in the alternative, whether the statute by
its terms imposes a different penalty; (2) whether the requirement is stated
in affirmative terms, unaccompanied by negative language; (3) whether the
requirement at issue relates to a matter of substance or one of convenience;
(4) whether the legislative history, the circumstances surrounding the stat-
ute’s enactment and amendment, and the full legislative scheme evince
an intent to impose a mandatory requirement; (5) whether holding the
requirement to be mandatory would result in an unjust windfall for the party
seeking to enforce the duty or, in the alternative, whether holding it to be
directory would deprive that party of any legal recourse; and (6) whether
compliance is reasonably within the control of the party that bears the
obligation, or whether the opposing party can stymie such compliance.’’
(Emphasis added.) Electrical Contractors, Inc. v. Ins. Co. of the State of
Pennsylvania, 314 Conn. 749, 758–59, 104 A.3d 713 (2014).
16
In this respect, the petition requirements in § C6-30-7 stand in stark
contrast to those provisions deemed directory by courts, which often involve
time limitations set forth in specific statutory provisions designed to ensure
order and convenience. See, e.g., United Illuminating Co. v. New Haven,
240 Conn. 422, 463, 692 A.2d 742 (1997) (requirement that assessor provide
notice of assessment within thirty days of hearing is directory); Katz v.
Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995)
(requirement that Commissioner of Revenue Services act on tax refund
claim within ninety days is directory); State v. Tedesco, 175 Conn. 279, 284,
397 A.2d 1352 (1978) (requirement imposing time limitation on agency’s
regulations ‘‘are designed to secure order, system and dispatch, and are
directory, not mandatory’’); Broadriver, Inc. v. Stamford, 158 Conn. 522,
530, 265 A.2d 75 (1969) (statutory requirement that return of notice be filed
within ninety days is directory), cert. denied, 398 U.S. 938, 90 S. Ct. 1841,
26 L. Ed. 2d 270 (1970); Donohue v. Zoning Board of Appeals, 155 Conn.
550, 554, 235 A.2d 643 (1967) (requirement that zoning board of appeals
decide appeal within sixty days after hearing is directory). See generally
Electrical Contractors, Inc. v. Ins. Co. of the State of Pennsylvania, 314
Conn. 749, 761, 104 A.3d 713 (2014) (observing that, ‘‘in a number of cases,
both this court and the Appellate Court have concluded that such statutory
deadlines are directory [when] there is no express legislative guidance to
the contrary and no indication that the legislature intended the deadline to
be jurisdictional’’). But see Vartuli v. Sotire, 192 Conn. 353, 359, 472 A.2d
336 (1984) (requirement to issue decision within sixty-five day limit is manda-
tory), overruled by Leo Fedus & Sons Construction Co. v. Zoning Board
of Appeals, 225 Conn. 432, 623 A.2d 1007; Viking Construction Co. v. Town
Planning Commission, 181 Conn. 243, 246, 435 A.2d 29 (1980) (requirement
that planning and zoning commission act on subdivision application within
time limits is mandatory).
The dissent incorrectly relies on these cases to support the notion that
the relevant charter provision is directory. These cases, however, all involve
time limitations, which often (although not always) are deemed directory
in nature because the deadlines imposed do not implicate ‘‘the essence of
the thing to be accomplished’’ but, rather, are ‘‘designed to secure order,
system and dispatch in the proceedings . . . .’’ (Internal quotation marks
omitted.) Meadowbrook Center, Inc. v. Buchman, 169 Conn. App. 527, 537,
151 A.3d 404 (2016), aff’d, 328 Conn. 586, 181 A.3d 550 (2018); see, e.g., id.(‘‘[W]e are persuaded that the thirty day time provision set forth in Practice
Book § 11-21 is intended to secure order and dispatch in the timely disposi-
tion of a pending issue. Therefore, the time limitation contained in the rule
is directory and not mandatory.’’); see also 3 S. Singer, Sutherland Statutes
and Statutory Construction (8th Ed. 2020) § 57:17, pp. 101–102 (‘‘The question
about whether time provisions are mandatory or directory . . . is a bit
unique, as interpretation may be informed less by a search for legislative
intent alone, and more by policy and equitable considerations aimed at
avoiding harsh, unfair, or absurd consequences. . . . [F]or reasons founded
in justice and fairness, and to avert injury to faultless parties, courts often
find that such provisions are directory merely.’’ (Footnotes omitted.)).
The signature requirements set forth in the charter, which define by
geographical proximity those owners eligible to sign the protest petition
and establish the minimum percentage of signatories needed to qualify for
review, are not comparable to time limitations, which are intended to ensure
order, efficiency and dispatch. Indeed, the dissent has not articulated any
purpose for the signature requirements that could be considered nonsubstan-
tive in nature.
17
During oral argument before this court, counsel for the board of repre-
sentatives argued for the first time that the validity of the petition is not
properly before us because the planning board is not a party to the present
action and ‘‘the decision of the planning board [to refer a protest petition]
would need to be appealed as any other land use appeal.’’ It is well established
that we may decline to address ‘‘newly raised argument[s]’’ and that ‘‘a claim
cannot be raised for the first time at oral argument.’’ (Internal quotation
marks omitted.) Burton v. Dept. of Environmental Protection, 337 Conn. 781,
797 n.12, 256 A.3d 655 (2021). To the extent that the board of representatives
claims, for the first time on appeal, that the plaintiffs had an obligation to
appeal from the decision of the planning board referring the protest petition
to the board of representatives or that the planning board is an indispensable
party to the present action, we deem these claims abandoned.
18
We disagree with the dissent that we have appointed ourselves ‘‘as a
municipal signature counter . . . .’’ The number of signatures is undisputed
on appeal, and we resolve no questions of fact in our adjudication of the
legal issue presented.