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*********************************************** 
STRAND/BRC GROUP, LLC v. BOARD OF REPRESENTATIVES—DISSENT

D’AURIA, J., dissenting. In a state with 169 municipalities, each legislatively created and with its own form

of governance, it should not be surprising that this court

often counsels against judicial interference in local legislative decisions. See, e.g., Benenson v. Board of Representatives, 223 Conn. 777, 784, 612 A.2d 50 (1992)

(‘‘[c]ourts will interfere with legislative decisions made

by municipalities only where the party seeking review

can characterize the legislative act as illegal, fraudulent,

or corrupt’’ (internal quotation marks omitted)). This

case illustrates well the importance of heeding our own

advice, which the court today does not. I respectfully

dissent.

The Planning Board of the City of Stamford is made

up of five mayoral appointees, nominated by the mayor

and approved by the Stamford Board of Representatives. Stamford Charter §§ C6-00-2 and C6-00-3. In the

present case, the Planning Board approved amendments to Stamford’s master plan of development, ‘‘the

general land use Plan for the physical development of

the City.’’ Stamford Charter § C6-30-3. The plaintiffs,

The Strand/BRC Group, LLC, 5-9 Woodland, LLC, Woodland Pacific, LLC, and Walter Wheeler Drive SPE, LLC,

owners of land in the city, proposed an amendment ‘‘to

modify their properties’ land use categories to allow

high-density residential development on the site of a

former recycling collection and disposal center.’’ The

Planning Board also submitted a proposed amendment

pertaining to nearby properties. The Planning Board

then conducted public hearings on both amendments

and approved them. Pursuant to § C6-30-7 of the Stamford Charter (charter), a Stamford resident filed a protest petition with the Planning Board, signed by adjacent property owners, objecting to the proposed

amendments. The Planning Board referred the petition

to the defendant, the Board of Representatives of the

City of Stamford. See Stamford Charter § C6-30-7.

The Board of Representatives is made up of forty

members elected by the city’s residents, two from each

of the city’s twenty voting districts. Stamford Charter

§§ C1-80-1 and C1-80-4. The charter provides that ‘‘[t]he

legislative power of the City [is] 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 specifically provided in

this Charter.’’ Stamford Charter § C2-10-1. In the present

case, upon the Planning Board’s referral of the petition,

the Board of Representatives voted to reject the amendments. To get their amendment reinstated, pursuant to

§ C6-30-20, the plaintiffs appealed to the trial court. The

plaintiffs claimed, among other things, that the Planning

Board never should have referred the petition to the
Board of Representatives without first determining

whether the petition was timely filed and contained

enough signatures for referral. The plaintiffs contend

that there were an insufficient number of signatures

because the Board of Representatives improperly combined petition signatures for the two separate applications. The trial court sustained the appeal, nullifying

the Board of Representatives’ rejection of the plaintiff

developers’ proposed amendment to the master plan.

In affirming the judgment of the trial court, the majority today strikes down the action of Stamford’s most

representative and authoritative legislative body: the

rejection of an amendment to the master plan proposed

by the plaintiff developers. The majority instead affirms

amendments approved by five Planning Board members, passed to facilitate the development of a high

density residential development. The majority is able

to upend the political process in this way only by labeling as substantive that which is procedural and imposing judicial standards on that which is legislative.

It is undisputed that, when approving or rejecting

proposed amendments to the city’s master plan, both

the Planning Board and the Board of Representatives

exercise legislative authority. This court has recognized

that, ‘‘in the planning and zoning context, [a] zoning

amendment is a change in the ordinance, enacted by

the legislative authority of a municipality.’’ (Emphasis

omitted; internal quotation marks omitted.) Stamford

Ridgeway Associates v. Board of Representatives, 214

Conn. 407, 425, 572 A.2d 951 (1990). Similarly, in a case

also involving Stamford’s charter, we indicated that,

‘‘[the] [B]oard [of Representatives], in reviewing the

action of the [city’s] zoning board, is called upon to

perform a legislative function.’’Burke v.Board of Representatives, 148 Conn. 33, 39, 166 A.2d 849 (1961). No

one contends that the Planning Board’s action is other

than legislative. ‘‘The plain language of [the charter

provision] leaves no room for any other construction.’’

Benenson v. Board of Representatives, supra, 223 Conn.

783. In exercising their respective authority related to

amending the master plan for the city, both the Planning

Board and the Board of Representatives are directed

to apply the same legislative standards. See Stamford

Charter §§ C6-30-3 and C6-30-7;1

see also Stamford

Ridgeway Associates v. Board of Representatives, supra,

432 (referring to standards guiding Board of Representatives as ‘‘typical legislative standards; viz., promotion

of health and the general welfare, provision for adequate

light and air, prevention of overcrowding, and avoidance of undue population concentration’’ (internal quotation marks omitted)).

I fully agree with the majority’s well reasoned analysis

and conclusion that, consistent with the charter’s language, it is the Planning Board’s responsibility to determine whether a protest petition meets the provisions
for a referral to the Board of Representatives, namely,

whether the petition is signed by the prescribed number

of property owners in the subject area and filed with

the Planning Board within ten days after the official

publication of the Planning Board’s decision. See Stamford Charter § C6-30-7. More particularly, I agree with

the majority that ‘‘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.’’

Also, like the majority, I find support for this conclusion in our case law, most of it concerning the charter.

In Benenson, we interpreted an almost identical provision of the charter to hold that a protest petition brings

a matter before the Board of Representatives because

the plain language of the charter ‘‘does not provide

for the approval or rejection of the ‘petition’ itself.’’

Benenson v. Board of Representatives, supra, 223 Conn.

783. As the majority correctly acknowledges, the petition is ‘‘merely the vehicle’’ that brings the issue to the

Board of Representatives. (Internal quotation marks

omitted.) We have reiterated that the ‘‘question before

the [B]oard [of Representatives is] not the petition,

which indicate[s] the property owners’ objection to the

[master plan amendment], but whether the [master plan

amendment] should be approved.’’ Benenson v. Board

of Representatives, supra, 783. Decades before that

case, we explained that ‘‘[t]he manifest legislative intent

expressed in the Stamford charter is that the [B]oard

of [R]epresentatives, in considering an amendment to

the zoning map, shall review the legislative action of the

[city’s] zoning board on that board’s written findings,

recommendations and reasons. The question before the

[B]oard of [R]epresentatives is whether to approve or

to reject the amendment.’’ Burke v. Board of Representatives, supra, 148 Conn. 39.

Thus, the majority and I agree that, when a petition

is filed with the Planning Board, that board must review

it and determine if it warrants referral to the Board of

Representatives. Upon referral of the petition by the

Planning Board, the Board of Representatives may act

only on the merits of the proposed amendment, applying

the same legislative standards as the Planning Board.

In fact, the Planning Board did refer the petition to

the Board of Representatives, albeit with no record of

having reviewed and determined whether the petition

was timely or contained the number of signatures contemplated by the charter for referral. The Board of

Representatives voted on the merits of the amendments

and rejected them, which the charter authorized it to do

upon referral from the Planning Board.

The majority’s reasoning focuses on the Board of

Representatives’ lack of authority to pass on the petition’s validity, not on the Planning Board’s failure to

pass on the petition’s validity and its resulting referral

of the petition. The majority repeats several times that
the Board of Representatives had no authority to determine the petition’s validity, including whether it contained sufficient signatures. We know this even if the

Planning Board did not. Both the charter’s language

and our case law make this clear. See Stamford Charter

§ C6-30-7; see also Benenson v. Board of Representatives, supra, 223 Conn. 783; Burke v. Board of Representatives, supra, 148 Conn. 35–36. But this does not necessarily address what happens when the Planning Board

erroneously refers a petition to the Board of Representatives. Does the Board of Representatives then lack

the authority to pass on the proposed amendment? If

the Board of Representatives has no authority to review

or pass on the petition’s validity, is it for a court to

go back and scrutinize whether the referral from one

legislative body to another was proper and, if not, to

void any subsequent legislative action?

The majority’s answers to these questions are ‘‘yes’’

and ‘‘yes.’’ The majority claims that the Board of Representatives lacks authority to pass on these amendments

because the charter’s signature provision ‘‘confers a

limited authority on the Board of Representatives,

which may be exercised only if a sufficient percentage

of the owners of private property within a defined geographic area . . . sign and timely file a protest petition

with the Planning Board.’’ (Emphasis omitted.) I part

company with the majority here because, in my view,

it is acting like a court reviewing executive action or

a ruling of a lower court rather than a court reviewing

legislative action, over which its appropriate scrutiny

is much more limited. See, e.g., Benenson v. Board of

Representatives, supra, 223 Conn. 784. And, in voiding

the Board of Representatives’ subsequent action, the

majority appoints itself as a municipal signature counter,

which, the majority claims, correctly in my view, the charter delegates to the Planning Board.

The majority is careful not to employ terms such as

‘‘jurisdiction’’ or ‘‘aggrievement’’ in its analysis. These

concepts have no obvious place in a court’s review of

such layers of legislative action. But the majority’s use

of terms such as ‘‘substantive,’’ ‘‘condition precedent,’’

‘‘void,’’ and ‘‘invalid,’’ is a dead giveaway: the majority

cannot disengage from its reflexive judicial role, a role

in which, before acting, a body must examine its own

jurisdiction and the jurisdiction of the body that came

before it. In this world, the majority is constrained to

find the exercise of legislative authority by the Board

of Representatives on the merits of the amendment

tainted by the earlier, improper exercise of authority

of the Planning Board, as determined by a court after

the Board of Representatives has acted. An examination

of forums in which these jurisdictional concepts are

appropriately applied, and scrutiny of the scant authority the majority cites for its conclusion, exposes the

majority’s jurisdictional reasoning as faulty.
For example, with the exception of actions challenging an unconstitutional statute or a state officer’s actions

in excess of statutory authority; Horton v. Meskill, 172

Conn. 615, 624, 376 A.2d 359 (1977); a court reviews

action by state executive officials only pursuant to legislative authorization, which—because it implicates the

state’s sovereign immunity from suit—is strictly construed. See, e.g., Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 388, 978 A.2d

49 (2009) (statutes in derogation of sovereign immunity

should be strictly construed). In a direct action against

an executive official, the plaintiff must identify a statute

that explicitly or by necessary implication compels a

conclusion that the legislature intended to waive the

state’s sovereign immunity from suit. Id. Similarly,

under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., ‘‘aggrieved’’ persons who

have ‘‘exhausted all administrative remedies available

within the agency’’ may appeal from a ‘‘final decision’’

within forty-five days to the Superior Court. General

Statutes § 4-183 (a) and (c). Given that § 4-183 constitutes a waiver of sovereign immunity; Republican Party

of Connecticut v. Merrill, 307 Conn. 470, 488 n.20, 55

A.3d 251 (2012); these requirements are considered

jurisdictional, and, without strict compliance with each,

the Superior Court lacks jurisdiction over the case. See,

e.g., Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792,

812, 629 A.2d 367 (1993) (no jurisdiction for lack of

contested case and final decision); Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 502, 508,

264 A.2d 566 (1969) (no jurisdiction for lack of

aggrievement); see also Piteau v. Board of Education,

300 Conn. 667, 690, 15 A.3d 1067 (2011) (no jurisdiction

for failure to exhaust administrative remedies). If a trial

court rules on the merits of such an action and orders

relief against a state agency or official without examining its jurisdiction, and this court or the Appellate Court

determines that the trial court lacked jurisdiction, the

appellate court will reverse the judgment of the lower

court and the relief ordered. See, e.g., Stepney, LLC

v. Fairfield, 263 Conn. 558, 571, 821 A.2d 725 (2003)

(remanding case with direction to dismiss for lack of

jurisdiction because of failure to exhaust administrative

remedies); Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 812

(remanding case with direction to dismiss appeal for

lack of jurisdiction when there was no contested case

and therefore no final decision); Fletcher v. Planning &

Zoning Commission, supra, 508 (remanding case with

direction to dismiss appeal for lack of jurisdiction when

plaintiff failed to establish aggrievement).

Similarly, with some common-law exceptions, an

appellate court may review trial court rulings only by

legislative delegation and authority. ‘‘Under General

Statutes §§ 52-263 and 51-197a, the ‘statutory right to
appeal is limited to appeals by aggrieved parties from

final judgments.’ ’’ Halladay v. Commissioner of Correction, 340 Conn. 52, 57, 262 A.3d 823 (2021); see also

id. (‘‘[b]ecause our jurisdiction over appeals . . . is

prescribed by statute, we must always determine the

threshold question of whether the appeal is taken from

a final judgment before considering the merits of the

claim’’ (internal quotation marks omitted)); cf. State v.

Skipwith, 326 Conn. 512, 521, 165 A.3d 1211 (2017)

(explaining that writ of error is common-law remedy

that ‘‘exists independent[ly] of [any] statutory authorization’’ (internal quotation marks omitted)). As was the

case in the previously discussed example concerning

a trial court’s review of state executive action, this court

will reverse the judgment of the Appellate Court if we

determine that the Appellate Court lacked jurisdiction;

see, e.g., Redding Life Care, LLC v. Redding, 331 Conn.

711, 744, 207 A.3d 493 (2019) (remanding case to Appellate Court to dismiss writ of error for lack of jurisdiction

because discovery order was not final judgment); and

we will dismiss appeals before our own court if we

determine that we do not have jurisdiction. See, e.g.,

Ambroise v. William Raveis Real Estate, Inc., 226 Conn.

757, 767, 628 A.2d 1303 (1993) (dismissing appeal for

lack of jurisdiction because of failure to timely appeal

pursuant to General Statutes § 52-278l).

These jurisdictional concepts are foreign to the legislative process and to a court’s review of that process.

‘‘[C]ourts cannot pass upon the regularity of legislative

proceedings, at least in the absence of a violation of

some constitutional restriction.’’ State v. Sitka, 11 Conn.

App. 342, 346, 527 A.2d 265 (1987), citing State v. Savings Bank of New London, 79 Conn. 141, 152, 64 A. 5

(1906). We have since the nineteenth century held that

‘‘[c]ourts will interfere with legislative decisions made

by municipalities only where the party seeking review

can characterize the legislative act as illegal, fraudulent,

or corrupt. . . . When such bodies are acting within

the limits of the powers conferred upon them, and in

due form of law, the right of courts to supervise, review

or restrain is exceedingly limited.’’ (Internal quotation

marks omitted.) Benenson v. Board of Representatives,

supra, 223 Conn. 784; Whitney v. New Haven, 58 Conn.

450, 457, 20 A. 666 (1890). ‘‘Difference in opinion or

judgment is never a sufficient ground for interference.’’

Whitney v. New Haven, supra, 457. This includes a

difference in opinion about how the petition signatures

should or should not be counted. The majority cites this

line of cases—which limits judicial review of legislative

action and distinguishes legislative action from administrative or quasi-judicial action of municipal actors—as

well as our precedents distinguishing mandatory statutory provisions from directory provisions, but does not

engage with or follow their reasoning. These cases

make this point clearly.

For example, in LaTorre v. Hartford, 167 Conn. 1,
3–6, 355 A.2d 101 (1974), two city councilmen were

financially associated with an insurance company that

sought to widen a road to build an office building. Pursuant to Hartford’s city charter, the Court of Common

Council was authorized to ‘‘lay out, construct, reconstruct, alter . . . streets’’ and to ‘‘open and widen

streets . . . .’’ (Citation omitted; internal quotation

marks omitted.) Id., 4. Notwithstanding the trial court’s

own determination that the councilmen should have

been disqualified, this court held that the council’s vote

to pass the ordinance widening the street was not

invalid. See id., 9. The court noted that, when, as in

that case, ‘‘the municipal authorities act in accordance

with formal requirements, courts will interfere only

where fraud, corruption, improper motives or influences, plain disregard of duty, gross abuse of power,

or violation of law, enter into or characterize the action

taken.’’ (Internal quotation marks omitted.) Id., 9, quoting Whitney v. New Haven, supra, 58 Conn. 457. We

reasoned that, because ‘‘the [C]ourt of [C]ommon [C]ouncil was acting in a proper legislative capacity in adopting

the ordinance to widen [the road]; that the ordinance

was enacted for a public purpose; that none of the

councilmen acted out of improper motives or permitted

any consideration to intrude into the deliberations and

actions other than what in [their] sound judgment was

in the best interest of the city; and that there was no

bad faith, clear abuse of power or plain disregard of

duty by the [C]ourt of [C]ommon [C]ouncil in enacting

the [road] widening ordinance,’’ the trial court erred in

vacating the council’s enactment based on the councilmen’s connection to the company. LaTorre v. Hartford, supra, 9. We so concluded based on ‘‘due regard

for the legislative magistracy and . . . a reluctance to

involve the courts in political controversies, and in the

review and revision of many, if not all, major controversial decisions of the legislative or executive authorities

of a municipality . . . .’’ Id., 8.

In contrast, in 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), we sustained an appeal challenging a plan

and zoning commission’s change in both the town’s

comprehensive plan and a zoning designation. In that

case, the commission unanimously denied an application to rezone land from agricultural to a more commercial designation to allow the construction of a shopping

center, reasoning that the land was subject to flooding

and that there already was adequate land in the area

already zoned for business. Id., 239. The applicants reapplied for a change in the comprehensive plan and a

zone change several weeks later, and the commission

granted the application by a split vote. Id., 239–40. As

the court explained, ‘‘[a]fter the denial of the first application and prior to the filing of the second, the members
of the commission and the applicants met privately and

agreed upon conditions under which a new application

would be considered.’’ Id., 241. The court held that

this opened to judicial scrutiny the propriety of the

commission’s decision to approve the change in the

comprehensive plan and the zone change, despite the

reluctance of courts to interfere with the actions of

legislative bodies, because ‘‘a court can grant relief

where the local authority has acted illegally or arbitrarily and has clearly abused the discretion vested in

it.’’ Id., 242. In the present case, the Board of Representatives’ vote on the merits of the amendments cannot

reasonably be considered ‘‘illegal’’ conduct that will

overcome our high threshold for judicial review of legislative actions, just because the Planning Board failed

to validate the petition before referring it. Nor is it the

same kind of administrative or quasi-judicial action that

warrants judicial scrutiny in accordance with these

principles. See, e.g., Low v. Madison, 135 Conn. 1, 9,

60 A.2d 774 (1948) (invalidating zoning commission’s

approval of zone change for commission member’s wife

due to conflict of interest because ‘‘administration of

power of that nature, whether it be denominated legislative or quasi-judicial, demands the highest public confidence,’’ despite courts’ reluctance to inquire into

motives of enacting body); see also LaTorre v. Hartford,

supra, 167 Conn. 8 (‘‘[t]his court has consistently

applied the standards enunciated in Low . . . to zoning

boards and commissions, and to public officials acting

in administrative or quasi-judicial capacities’’). In

determining whether the Board of Representatives’

action is illegal or arbitrary, the pertinent question is

whether the signature provision is mandatory or directory. Unless and until the signature provision is deemed

mandatory, which, as I will discuss, is not, any exercise

of authority by the Board of Representatives without

sufficient signatures is not illegal, arbitrary, or without

due form of law in the way our case law has articulated.

‘‘In construing a [municipal] charter, the rules of statutory 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.) Cook-Littman v.

Board of Selectmen, 328 Conn. 758, 768, 184 A.3d 253

(2018). ‘‘The test to be applied in determining 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 legislative provision

is designed to secure order, system and dispatch in

the proceedings, it is generally held to be directory,
especially where the requirement is stated in affirmative

terms unaccompanied by negative words.’’ (Internal

quotation marks omitted.) Lostritto v. Community

Action Agency of New Haven, Inc., 269 Conn. 10, 19,

848 A.2d 418 (2004); see also Winslow v. Zoning Board,

143 Conn. 381, 387–88, 122 A.2d 789 (1956) (Board of

Representatives was able to amend ordinance despite

failure to comply with sixty day requirement in charter).

In particular, we have followed ‘‘applicable tenets of

statutory construction . . . to ascribe significance to

the absence’’ of legislative consequences in concluding

that procedural requirements are directory and not

mandatory. Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 441, 623 A.2d 1007

(1993). ‘‘In Koepke v. Zoning Board of Appeals, 223

Conn. 171, 177, 610 A.2d 1301 (1992), we determined

that because the Coventry [Z]oning [B]oard of [A]ppeals

had failed to publish adequate notice of a hearing, the

hearing and subsequent revocation of the plaintiff’s permit were invalid. We then addressed the consequences

that flow from a zoning board’s invalid hearing and

subsequent ruling on an appeal from a decision of a

zoning enforcement officer. Id. On that issue we stated:

While the board’s failure to give proper notice of its

public hearing nullified its subsequent actions, that

default had no further automatic consequences. Even

if a failure to give proper notice were deemed the equivalent of a failure to take timely action within the time

constraints of [General Statutes] § 8-7, that statute,

contrary to General Statutes §§ 8-3 (g) or 8-26, does

not make inaction tantamount to approval either of

the challenged zoning permit or of the challenged

appeal. . . . Id., 178–79.’’ (Citation omitted; emphasis

in original; internal quotation marks omitted.) Leo

Fedus & Sons Construction Co. v. Zoning Board of

Appeals, supra, 442–43.

In so concluding, we relied on Donohue v. Zoning

Board of Appeals, 155 Conn. 550, 235 A.2d 643 (1967),

in which we held that a statute providing that ‘‘[the

zoning] board shall decide such appeal within sixty days

after the hearing’’ was directory, and not mandatory,

and, therefore, the board’s decision, rendered after

more than sixty days, was not void. (Internal quotation

marks omitted.) Id., 554. ‘‘In determining whether a

statute is mandatory or merely directory, the most satisfactory and conclusive test is whether the prescribed

mode of action is of the essence of the thing to be

accomplished or, in other words, whether it relates to

matter of substance or matter of convenience.’’ Id. We

concluded that the provision was directory, and, therefore, the board’s decision was not void because (1) the

provision related to procedure, (2) the language was

affirmative in character and intended to encourage

timely decisions by the board, (3) the statute contained

nothing that ‘‘expressly invalidate[d] a belated decision

or [that] inferentially [made] compliance therewith a
condition precedent,’’ (4) the provision was ‘‘not of the

essence of the thing to be accomplished,’’ and (5) there

was no time limitation, ‘‘the nonobservance of which

render[ed] the board’s decision voidable.’’ Id., 554–55.

Likewise, in the present case, the better reading of

§ C6-30-7 of the charter, more consistent with our case

law, is that it is directory and procedural, not mandatory, substantive, or containing a ‘‘condition precedent’’

to the Board of Representatives’ lawful exercise of legislative power. Section C6-30-7 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 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, 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 . . . . When acting upon such matters the

Board of Representatives shall be guided by the same

standards as are prescribed for the Planning Board in

Section C6-30-3 of this Charter. 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 Planning Board’s decision.’’

(Emphasis added.) This provision ‘‘is stated in affirmative terms unaccompanied by negative words.’’ (Internal quotation marks omitted.) Lostritto v. Community

Action Agency of New Haven, Inc., supra, 269 Conn.

19. With its time period (ten days) and signature provision (20 percent or more), § C6-30-7 provides for convenience and dispatch. The provision relates to procedure;

it begins the process by which an amendment can be

referred to the Board of Representatives by preventing

the decision from going into ‘‘force or effect’’ and directing the Planning Board to refer the matter with ‘‘written

findings, recommendations and reasons.’’ Stamford Charter § C6-30-7. The language is affirmative and intended

to encourage and facilitate timely review by the Board

of Representatives of ‘‘matters’’ about which affected

residents feel strongly because it signals to the Board of

Representatives that there is a matter affecting enough

residents to warrant review. The charter then gives the

Board of Representatives the power to vote down or to

approve the amendment when referred. The signature

provision, therefore, is not one of substance but one

of convenience to ensure the orderly review of amendments by the Board of Representatives.

The best evidence that this provision is directory is

that the charter prescribes no consequence for the Plan-
ning Board’s referral of a petition that contains an insufficient number of signatures and does not expressly,

or even impliedly, invalidate a decision by the Board

of Representatives for the same insufficiency. See Stamford Charter § C6-30-7. ‘‘ ‘A reliable guide in determining

whether a statutory provision is . . . mandatory is

whether the provision is accompanied by language that

expressly invalidates any action taken after noncompliance with the provision.’ . . . By contrast, where a

statute by its terms imposes some other specific penalty, it is reasonable to assume that the legislature contemplated that there would be instances of noncompliance and did not intend to invalidate such actions. . . .

[The] ‘lack of a penalty provision or invalidation of an

action as a consequence for failure to comply with the

statutory directive is a significant indication that the

statute is directory.’ ’’ (Citations omitted.) Electrical

Contractors, Inc. v. Ins. Co. of the State of Pennsylvania, 314 Conn. 749, 759–60, 104 A.3d 713 (2014). If the

drafters had intended to bar the Board of Representatives from reviewing an amendment on account of an

insufficient number of signatures on the petition, it

could have included a consequence in the provision, as

it did in § C6-30-7. See Leo Fedus & Sons Construction

Co. v. Zoning Board of Appeals, supra, 225 Conn. 442

(because other statutory provisions expressly provide

for automatic approval, ‘‘it can be inferred that had the

legislature intended that the failure of a zoning board of

appeals to hold a hearing within sixty-five days results

in automatic approval, the legislature would have so

provided’’). Indeed, the very same provision contains

a mandated outcome for the Board of Representatives’

failure either to approve or reject an amendment within

a certain time, namely, it ‘‘shall be deemed as approval

of the Planning Board’s decision.’’ Stamford Charter

§ C6-30-7. Had the drafters used similar, outcome determinative language in § C6-30-7, the majority’s assertion

that sufficient signatures are a ‘‘condition precedent’’

to the Board of Representatives’ exercise of authority,

and that any exercise of authority is ‘‘void’’ without

those signatures, might hold some weight.2

The majority makes my point for me with its discussion of cases in which we have determined that a time

limitation is mandatory, as contrasted with its catalog

of cases in which we have held such provisions to be

directory. In the cases cited in which we have held

that a time limitation is mandatory, there has been an

accompanying approval clause, attaching a consequence to a legislative body’s failure to act on a decision

within a certain time period. See, e.g., Vartuli v. Sotire,

192 Conn. 353, 362, 472 A.2d 336 (1984) (legislature

‘‘expressly made approval of a coastal development

plan mandatory upon failure to disapprove an application within the specified time period,’’ in part, because

of automatic approval clause in accompanying statute),

overruled by Leo Fedus & Sons Construction Co. v.
Zoning Board of Appeals, 225 Conn. 432, 623 A.2d 1007

(1993); Viking Construction Co. v. Planning Commission, 181 Conn. 243, 246, 435 A.2d 29 (1980) (requirement to act on subdivision application within time limits

was mandatory because ‘‘[f]ailure [of] the commission

to act within this time frame results in the approval

of the subdivision application by operation of law’’).

Section C6-30-7 is an example of such a provision: the

Board of Representatives’ failure either to approve or

reject the amendment after two regularly scheduled

meetings shall be deemed an approval of the Planning

Board’s decision. In contrast, as I indicated previously,

and as in the line of cases the majority cites in which

a time limitation is directory, the charter imposes no

consequence on the Board of Representatives for taking

action on a proposed amendment that arrived pursuant

to a petition containing an insufficient number of signatures because the Board of Representatives has no

authority or responsibility to scrutinize the petition but

has authority to rule on the proposed amendment. See

United Illuminating Co. v. New Haven, 240 Conn. 422,

466, 692 A.2d 742 (1997) (requirement to provide notice

of assessment within thirty days of hearing was held

to be directory, in part because ‘‘there is no language

expressly invalidating a defective notice’’); Katz v.Commissioner of Revenue Services, 234 Conn. 614, 617,

662 A.2d 762 (1995) (‘‘[a] reliable guide in determining

whether a statutory provision is directory or mandatory

is whether the provision is accompanied by language

that expressly invalidates any action taken after noncompliance with the provision’’); State v. Tedesco, 175

Conn. 279, 285, 397 A.2d 1352 (1978) (Compliance with

a time limitation in an agency’s regulations was held

to be directory because it is ‘‘always within the discretion of a court or an administrative agency to relax

or modify its procedural rules adopted for the orderly

transaction of business before it when in a given case

the ends of justice require it. The action of either in

such a case is not reviewable except upon a showing

of substantial prejudice to the complaining party.’’

(Internal quotation marks omitted.)); Broadriver, Inc.

v. Stamford, 158 Conn. 522, 530, 265 A.2d 75 (1969)

(ninety day requirement to file return of notice was

held to be directory because, in part, ‘‘[t]he statute

contains nothing to invalidate a belated title transfer

or which inferentially makes compliance with the time

requirement a condition precedent’’), cert. denied, 398

U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970); see

also Meadowbrook Center, Inc. v. Buchman, 328 Conn.

586, 597, 181 A.3d 550 (2018) (‘‘[T]he language of Practice Book § 11-21 does not specifically invalidate or

otherwise penalize motions filed beyond the thirty day

deadline. ‘This lack of a penalty provision or invalidation of an action as a consequence for failure to comply

with the statutory directive is a significant indication

that the statute is directory.’ ’’); Electrical Contractors,

Inc. v. Ins. Co. of the State of Pennsylvania, supra, 314
Conn. 761–62 (observing that our appellate courts have

concluded that ‘‘statutory deadlines are directory where

there is no express legislative guidance to the contrary

and no indication that the legislature intended the deadline to be jurisdictional’’ by distinguishing cases in

which statute provided consequence for failure to act

within certain time and cases in which statute did not).

Nonetheless, the majority insists that ‘‘a valid protest

petition is a condition precedent to the authority of the

[B]oard of [R]epresentatives to vote on the merits of

an amendment,’’ and only by voiding the Board of Representatives’ action on the amendment is the charter

given its ‘‘intended and obvious meaning . . . .’’

(Emphasis added.) In an exercise of circular self-definition, the majority opines that the Board of Representatives ‘‘acted on a proposed amendment that was not

properly before it due to the legal defect in the protest

petition’’ and that the signature threshold is a ‘‘condition

precedent to the Board of Representatives’ authority

to vote on the merits of an amendment’’ that is the

‘‘ ‘essence’ ’’ of the provision. The majority contends

that the provision was ‘‘crafted to achieve a manifestly

substantive purpose,’’ which, it asserts without citation,

is to limit the Board of Representatives’ authority ‘‘to

situations in which a protest petition is signed by a

significant percentage of the persons most affected by

the amendment . . . .’’ (Emphasis omitted.) In particular, the majority cites no cases and provides no legal

analysis as to how a court determines that a provision

prescribing a legislative process is ‘‘substantive’’ or a

‘‘condition precedent . . . .’’3

The best the majority can muster for support is Stamford Ridgeway Associates, which the majority claims

stands for the proposition that the signature provision

is a ‘‘substantive provision of the charter intended to

ensure that review by the Board of Representatives is

triggered if, and only if, there is a sufficient number of

owners of private land with interests directly affected

by the proposed amendment.’’ The case says no such

thing, and simply calling that proposition ‘‘[i]nherent’’

in the holding of Stamford Ridgeway Associates does

not strengthen the majority’s conclusion. To understand

why the majority is mistaken about this precedent

requires an understanding of the precise proposal under

consideration at the local level in that case.

In Stamford Ridgeway Associates, the Zoning Board

of the City of Stamford approved a comprehensive zoning plan for the city, consisting of eight separate applications that covered ‘‘large sections of the city of Stamford

and included areas for which various zone changes were

proposed, as well as other areas that were to remain

unchanged.’’ Stamford Ridgeway Associates v. Board

of Representatives, supra, 214 Conn. 409. The plaintiffs,

local property owners adversely affected by some of

the zone changes proposed in the eighth application,
filed protest petitions requesting referral to the Board

of Representatives to challenge the zone changes. Id.,

409–10. Pursuant to the charter, the Zoning Board

referred ‘‘its findings, recommendations and reasons in

connection with its action in approving’’ the application

to the Board of Representatives. Id., 411. The Board of

Representatives took no action on the plaintiffs’ petitions, which constituted an affirmance of the Zoning

Board’s decision. Id. The plaintiffs appealed to the Superior Court, which, after a trial, sustained the appeal and

reversed the action of the Board of Representatives,

holding that, under the charter, the Board of Representatives could act only on the entire application as a

whole, and not piecemeal, because the Zoning Board

had adopted the changes as a ‘‘ ‘single package.’ ’’ Id.,

419. The trial court further held that its decision was

without prejudice to the Board of Representatives’

determination whether there was ‘‘a sufficient number

of petitioners [seeking] a hearing treating the matter as

a whole.’’ (Internal quotation marks omitted.) Id., 420.

This court rejected the trial court’s conclusion that

the Board of Representatives could not act on separate

amendments. See id., 422. Looking to the charter, we

determined that the language, ‘‘[20] percent or more

of the owners of the privately-owned land in the area

included in any proposed amendment to the [z]oning

[m]ap,’’ meant that the 20 percent threshold is measured

by the areas to be changed or rezoned, and not the

entire application. (Emphasis omitted; internal quotation marks omitted.) Id., 424; see also id., 424–26. To

hold otherwise could make it impossible to obtain

enough signatures to meet the 20 percent threshold

because unaffected property owners, or those happy

with the amendment as it pertains to them, might be

reluctant to sign the petition, thereby enabling a municipality ‘‘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 manner that would permit its purpose

to be defeated.’’ (Internal quotation marks omitted.) Id.,

426. This court then rejected a broad reading of the

phrase ‘‘any proposed amendment’’ to mean all amendments contained in an application because doing so

‘‘would limit the right of property owners to petition

the [B]oard of [R]epresentatives and would be in contravention of the legislative intent and purpose of [a

former provision of the charter] § C-552.2 [which is

essentially the same as § C6-30-7] to provide landowners a right to appeal to the board. It would require

a petitioner to obtain signatures of 20 percent of the

property owners included in all of the amendments or

zone changes encompassed in one application.’’

(Emphasis added.) Id., 428. ‘‘A narrow interpretation

of ‘any’ in the phrase ‘in any proposed amendment’ of

§ C-552.2 would not only effectuate the ultimate charter

purpose giving the right to landowners to protest pro-
posed zone changes but it is the only reasonable and

rational construction of § C-552.2.’’ Id., 430.

Thus, the discussion in Stamford Ridgeway Associates makes clear that the signature provision is not an

aggrievement, condition precedent, or limitation provision.4 Rather, it protects affected nearby landowners5

by empowering them to obtain greater review by the

Board of Representatives, not less, and nothing in our

discussion in that case suggested that the purpose of

the provision was to place a jurisdictional condition

(‘‘if, and only if,’’ to use the majority’s language) on

the Board of Representatives’ authority. See id., 426. It

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.6

The more faithful reading of the holding in Stamford

Ridgeway Associates is that the purpose of the charter

provision is to facilitate referral to the Board of Representatives.

Although I agree that the Board of Representatives

cannot ‘‘act in contravention of charter provisions

expressly limiting that authority to specified conditions,’’ the only express limits that the charter provides

for the Board of Representatives is that it act on an

amendment within a certain time period and that it

be guided by typical zoning standards. The signature

provision may be an express limit on the Planning

Board, but that does not mean that the subsequent

exercise of legislative authority by the Board of Representatives is likewise constrained.7 The majority’s

attempt to make it so falters on the same grounds as

its endeavor to imbue the signature provision as a ‘‘substantive’’ provision or ‘‘condition precedent . . . .’’

Further, although the majority relies heavily on Burke

v. Board of Representatives, supra, 148 Conn. 33, that

case supports my thesis precisely.8

In that case, the

Board of Representatives ‘‘failed to follow the charter

requirements for the adoption of either an ordinance

or a resolution.’’ Id., 41. Although we explained that,

when ‘‘the charter . . . provides that action of the legislative body shall be by ordinance or resolution, it must

act in the manner prescribed’’; in that case, the charter

did ‘‘not require that the [B]oard of [R]epresentatives

shall act only by ordinance or resolution. [The charter]

empowers the board to adopt and amend its own rules

of order. . . . This the board could do in the area where

the charter does not specifically provide otherwise.

. . . The claim that the action of the [B]oard of [R]epresentatives was invalid because of its failure to follow

the rules prescribed by the charter for the adoption of

ordinances or resolutions therefore [fails].’’ (Citations

omitted.) Id., 42–43. We then rejected the claim that

the zoning board’s work was thwarted if the Board of

Representatives could act without notice and a hearing,

holding that ‘‘[a]ny claimed defect in the zoning law
and procedures adopted for the city of Stamford is a

matter for legislative consideration. Courts cannot read

into statutes, by the process of interpretation, provisions for notice and a full hearing which are not

expressed in them. . . . Courts must apply statutes as

they find them, whether or not they think that the statutes might be improved by the inclusion of other or

additional provisions.’’ (Citations omitted.) Id., 43. Likewise, the majority may not read into the charter a limitation on the Board of Representatives’ exercise of

authority that is not present.

Trained as lawyers and operating as we do in a judicial forum, it is understandably difficult for judicial

officers to keep our hands off the legislative process

and to try not to make regular that which is irregular.

As a court, we are drawn to consider a signature provision like the one in the present case to be akin to

an ‘‘aggrievement’’ requirement. That is familiar to us.

Without explicitly saying so, that is how the majority

treats it. But measured against our cases, and particularly as applied to the legislative arena, it is not.

For example, if the protest petition had been filed

one day late and the Planning Board still referred it to

the Board of Representatives, there is no doubt that,

under our previously discussed cases, we would conclude that the timeliness provision is not a condition

precedent or a mandatory requirement. The Planning

Board’s referral would not be void; nor would the Board

of Representatives’ action upon referral.9 Similarly,

there is no evidence that the drafters of the charter

intended the signature provision, found only words

away from the ten day provision, to be a strict jurisdictional or aggrievement requirement, let alone a condition precedent, and we should resist the temptation to

impose judicial order on a process that is not orderly.

Not all legislative errors warrant judicial intervention

and management. ‘‘Absent a clear showing of fraud,

illegality, or corruption, courts will not intervene in

the legislative process.’’ Northeast Electronics Corp. v.

Royal Associates, 184 Conn. 589, 593, 440 A.2d 239

(1981). The discretion of a legislative body, because of

its constituted role as formulator of public policy, is

much broader than that of an administrative board,

which serves a quasi-judicial function. Tillman v. Planning & Zoning Commission, 341 Conn. 117, 128, 266

A.3d 792 (2021). Any dissatisfaction with the Board of

Representatives’ exercise of authority in rejecting the

amendment is remedied by engaging in the political

process. See, e.g., Schieffelin & Co. v. Dept. of Liquor

Control, 194 Conn. 165, 185, 479 A.2d 1191 (1984);

Northeast Electronics Corp. v. Royal Associates, supra,

593.

The judiciary, unlike the elected representatives of

Stamford, is uniquely unequipped to delve into the local

legislative arena. In fact, we very recently stated that,
‘‘[i]n traditional zoning appeals, the scope of judicial

review depends on whether the zoning commission has

acted in its legislative or administrative capacity. . . .

Zoning must be sufficiently flexible to meet the demands

of increased population and evolutionary changes in

such fields as architecture, transportation, and redevelopment. . . . The responsibility for meeting these

demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission.’’ (Internal quotation marks

omitted.) Tillman v. Planning & Zoning Commission,

supra, 341 Conn. 127–28. Courts afford ‘‘zoning authorities this discretion in determining the public need and

the means of meeting it, because the local authority

lives close to the circumstances and conditions which

create the problem and shape the solution. . . .

Courts, therefore, must not disturb the decision of a

zoning commission unless the party aggrieved by that

decision establishes that the commission acted arbitrarily or illegally.’’ (Citation omitted; internal quotation

marks omitted.) First Hartford Realty Corp. v. Plan &

Zoning Commission, 165 Conn. 533, 540–41, 338 A.2d

490 (1973). Inasmuch as the Board of Representatives,

under the charter, undertakes the same legislative function and applies the same standards as a zoning board

or a planning board, we should afford the same deference in this matter.

Because of the majority’s determination to supervise

the regularity of local legislative processes, I am concerned that this court will necessarily inject itself into

local legislative disputes in innumerable municipalities.

In the present case, for example, what is at stake is

whether there should be an amendment to the master

plan for the city of Stamford. This is a classic political

matter for the city and its duly elected local representatives to consider. Although the framers might have

determined, for reasons of convenience or dispatch, to

put the onus to protest an amendment on those who

own land nearby through the signature provision, as I

have established, this provision cannot be understood

as a jurisdictional barrier. After all, amending the master

plan impacts all aspects of city governance and city life:

traffic, tax base, schools, residential and commercial

development, changes in population density, and environmental concerns.

Of course, the court’s reservations—and my own—

about wading into local legislative matters would be

completely misplaced if vested rights were at stake in

this dispute. But they are not. No one argues that they

are. ‘‘To be vested, a right must have become [for example] a title, legal or equitable, to the present or future

enjoyment of property, or to the present or future . . .

enforcement of a demand, or a legal exemption from

a demand made by another. . . . A right is not vested

unless it amounts to something more than a mere expectation of future benefit or interest founded upon an
anticipated continuance of the existing general laws.’’

(Citation omitted; internal quotation marks omitted.)

Hayes Family Ltd. Partnership v. Planning & Zoning

Commission, 98 Conn. App. 213, 233, 907 A.2d 1235

(2006), cert. denied, 281 Conn. 903, 916 A.2d 44 (2007);

see also Aspetuck Valley Country Club, Inc. v. Weston,

292 Conn. 817, 834, 975 A.2d 1241 (2009). For example,

we have rejected a claim that a validating act was unconstitutional because the plaintiffs had no vested right

to sue on the basis of procedural defects in the state

environmental protection commissioner’s preparation

of an environmental impact statement. See Manchester

Environmental Coalition v. Stockton, 184 Conn. 51,

71–72, 441 A.2d 68 (1981), overruled in part on other

grounds by Waterbury v. Washington, 260 Conn. 506,

800 A.2d 1102 (2002). We explained that the plaintiffs

did not ‘‘allege that the commissioner lacked authority,

but rather that he attempted to exercise his authority

in an unauthorized fashion. ‘The law is well established

in this state that invalidity which comes about in this

manner may be cured retrospectively by appropriate

legislation.’ ’’ Manchester Environmental Coalition v.

Stockton, supra, 71–72.

In the zoning context, ‘‘[a] landowner does not have

a vested right in the existing classification of his land.

On the contrary, the enabling acts which authorize the

enactment of zoning ordinances provide for the amendment of such ordinances. A landowner’s right to establish a particular use can be summarily terminated by

an amendment which reclassifies his land and outlaws

the use in question. . . . A landowner does not obtain

a vested right in what has subsequently become a nonconforming use by filing a plan or by applying for a

construction permit. . . . Even the issuance of a building permit does not necessarily create a vested right

unless the building is substantially under construction

before zoning regulations are amended.’’ (Citations

omitted; internal quotation marks omitted.) Marmah,

Inc. v. Greenwich, 176 Conn. 116, 120–21, 405 A.2d 63

(1978). The Appellate Court has held that, although a

plaintiff may have vested rights in a property, generally,

a plaintiff does not have ‘‘vested rights in the configuration of that property as it sought to reconfigure it, nor

could it have acquired such vested rights without seeking approval of its proposed reconfiguration in accordance with established protocol and procedures.’’ Stones

Trail, LLC v. Weston, 174 Conn. App. 715, 742, 166 A.3d

832, cert. dismissed, 327 Conn. 926, 171 A.3d 59 (2017),

and cert. denied, 327 Conn. 926, 171 A.3d 60 (2017).

Further, ‘‘[n]o one has a vested right in any given

mode of procedure . . . and so long as a substantial

and efficient remedy remains or is provided due process

of law is not denied by a legislative change.’’ (Citations

omitted.) Crane v. Hahlo, 258 U.S. 142, 147, 42 S. Ct.

214, 66 L. Ed. 514 (1922); see also Vernon v. Cassadaga

Valley Central School District, 49 F.3d 886, 890 (2d Cir.
1995). The failure of the petition to contain sufficient

signatures does not therefore vest in the plaintiffs any

rights in the successful passage of their amendment. It

cannot be said that the plaintiffs have no remedy available to them if they cannot void the Board of Representatives’ vote due to an insufficient number of signatures.

There are at least two potential avenues, one of which

the plaintiffs pursued: (1) challenging the Board of Representatives’ vote on the merits as not applying the

appropriate legislative standard provided by the charter, or (2) engaging in the legislative process, such as

reapplying for an amendment, gathering additional

political support, or asking the Board of Representatives to reconsider. I am unaware of anything that prevented the plaintiffs from pursuing this latter remedy

in the years since this litigation began or anything preventing them from pursuing it now. I submit that that

is a far superior remedy than a court undoing the action

of the city’s representative body.

I recognize that the majority is not taking the action

it is today based on a theory of vested rights. It is

doing so based on far less justification. To the majority,

because the five person Planning Board adopted the

plaintiffs’ amendment and, based on our count and no

one else’s, the petition contained an insufficient number

of signatures, the Board of Representatives had no business taking action on that amendment. And the majority

is here to correct that. I simply disagree that that is—

or should be—a court’s role, and I believe our precedents agree.

My disagreement is further supported by the fact

that the United States Court of Appeals for the Second

Circuit has rejected a remarkably similar challenge to

a town planning board’s enactment of zoning ordinances. In Orange Lake Associates, Inc. v. Kirkpatrick,

21 F.3d 1214, 1224 (2d Cir. 1994), the Second Circuit

held that a developer’s due process rights were not

violated when the town board of Newburgh, New York,

enacted zoning ordinances to implement a new master

plan for Newburgh. The Second Circuit agreed that the

developer had ‘‘no vested right to approval of its plans

for the project’’ and that there was nothing to indicate

that the developer’s claimed procedural defects

affected the decisions of the town board or Newburgh’s

planning board. Id. Likewise, here, the plaintiffs have

no vested right in the approval of their proposed amendment, as nothing currently before this court suggests

that the insufficient signatures affected the Board of

Representatives’ decisions on the merits of the amendment, given that the trial court bifurcated the trial to

address the jurisdictional issue first. If the law were

otherwise, the judiciary would be invited regularly to

intervene in routine legislative proceedings, in contravention of our settled role. Vested rights provide a clear

delineation so that courts do not get involved in the

kind of policymaking that is better left to more represen-
tative bodies elected to conduct the work of local lawmaking.

Because I would conclude that any erroneous referral

of the petition by the Planning Board does not vitiate

the action of the Board of Representatives, I would

reverse the trial court’s judgment and remand the case

to that court for additional proceedings on whether the

Board of Representatives acted arbitrarily, illegally, or

in a manner that was inconsistent with the guiding

zoning standards when voting on the merits of the proposed amendment. I therefore respectfully dissent.

1 Section C6-30-3 of the charter guides the Planning Board when it acts

on the master plan. Section C6-30-3 provides: ‘‘The Master Plan shall be the

general land use Plan for the physical development of the City. The Plan

shall show the division of Stamford into land use categories such as, but

not restricted to, the following:

‘‘1. Residential—single family plots one acre or more.

‘‘2. Residential—single family plots less than one acre.

‘‘3. Residential—multi-family—low density.

‘‘4. Residential—multi-family—medium density.

‘‘5. Commercial—local or neighborhood business.

‘‘6. Commercial—general business.

‘‘7. Industrial.

‘‘The land use categories indicated on the Master Plan shall be defined

by the Planning Board and made a part of such Plan. The Plan shall also

show the Board’s recommendation for the following: streets, sewers, bridges,

parkways, and other public ways; airports, parks, playgrounds and other

public grounds; the general location, relocation and improvement of schools

and other public buildings; the general location and extent of public utilities

and terminals, whether publicly or privately-owned, for water, light, power,

transit, and other purposes; the extent and location of public housing and

neighborhood development projects. Such other recommendations may be

made by the said Board and included in the Plan as will, in its judgment,

be beneficial to the City. Such Plan shall be based on studies of physical,

social, economic, and governmental conditions and trends and shall be

designed to promote with the greatest efficiency and economy, the coordinated development of the City and the general welfare, health and safety

of its people.’’

Section C6-30-7 of the charter provides in relevant part that, when acting

on a proposal to approve or reject an amendment to the master plan, ‘‘the

Board of Representatives shall be guided by the same standards as are

prescribed for the Planning Board in Section C6-30-3 of this Charter. . . .’’

2 For example, the charter contains much clearer language in another

provision denying the Board of Representatives authority over highways

without Planning Board approval. See Stamford Charter § 214-40 (‘‘[T]he

Board of Representatives is empowered, whenever in its opinion public

health, safety, welfare, convenience or necessity require[s], to lay out, alter,

extend, enlarge, exchange or discontinue any highway or the grade of any

highway,’’ but ‘‘[s]aid powers granted to the Board of Representatives shall

not be exercised without the approval of the Planning Board, the Board of

Finance and the Mayor’’).

3 Usually, a court assesses whether a legislative act is ‘‘substantive,’’ as

opposed to ‘‘procedural,’’ when determining whether the act applies prospectively or retroactively. See, e.g., D’Eramo v. Smith, 273 Conn. 610, 620–21, 872

A.2d 408 (2005) (‘‘Whether to apply a statute retroactively or prospectively

depends upon the intent of the legislature in enacting the statute. . . . While

there is no precise definition of either [substantive or procedural law], it is

generally agreed that a substantive law creates, defines and regulates rights

while a procedural law prescribes the methods of enforcing such rights or

obtaining redress.’’ (Citations omitted; footnote omitted; internal quotation

marks omitted.)). Whether a provision constitutes a ‘‘ ‘condition precedent’ ’’

implicates the same ‘‘mandatory’’ or ‘‘directory’’ analysis this dissenting

opinion undertakes in the text. Leo Fedus & Sons Construction Co. v. Zoning

Board of Appeals, supra, 225 Conn. 440, quoting Donohue v. Zoning Board

of Appeals, supra, 155 Conn. 554; see also Leo Fedus & Sons Construction

Co. v. Zoning Board of Appeals, supra, 440 (‘‘in support of our conclusion

. . . the ‘statute contains nothing which expressly invalidates a belated
decision or which inferentially makes compliance therewith a condition

precedent’ ’’).

4 Although Stamford Ridgeway Associates refers to a landowner’s ‘‘right

to appeal’’ to the Board of Representatives, the charter provision at issue

before us, § C6-30-7, does not use this language, and the language it does

use is not similar to that used when an aggrieved party has a ‘‘right to

appeal’’ to a higher tribunal. The charter instead provides that a protest

petition leads to a ‘‘referr[al] by the Planning Board to the Board of Representatives,’’ with the Planning Board’s decision having no force and effect.

Stamford Charter § C6-30-7. Where the charter’s drafters sought to provide

a ‘‘right to appeal’’ in the sense we in the judiciary understand it, they did

so. See Stamford Charter § C6-30-20.

5 The flaw in the majority’s syllogism is demonstrated by the illogical

suggestion that those landowners within the area described by the charter

are ‘‘most affected,’’ or are the only ones ‘‘directly affected,’’ by the passage

or defeat of an amendment to the master plan or the zoning regulation.

Many such proposals are just as likely to affect directly the interests of

innumerable Stamford residents on issues of economics, environment, and

population density, to name a few. But Stamford Ridgeway Associates

concludes that the ability to petition the Board of Representatives is not

thwarted by the inclusion of additional area, not affected by a proposed

amendment, in an application. See Stamford Ridgeway Associates v. Board

of Representatives, supra, 214 Conn. 426. So, although the charter ‘‘very

clearly does not provide all Stamford residents with a right to protest’’;

(emphasis added); as the majority states, the charter is similarly very clear

that, once an amendment has been referred, erroneously or not, the Board

of Representatives’ authority to approve or reject an amendment is not

limited to consideration of only the interests of the residents who protested.

6 The majority’s reliance on Stamford Ridgeway Associates continues

with its suggestion that we have previously held that ‘‘sufficient signatures

are needed for [the] Board of Representatives to reconsider’’ an amendment.

It was not this court that said that, however. Rather, that came from an

opinion by Attorney Robert A. Fuller, whom the president of the Board

of Representatives hired to review the matter. See Stamford Ridgeway

Associates v. Board of Representatives, supra, 214 Conn. 412–13. And,

although the majority may contend that this court relied on Fuller’s opinion

to hold that the Board of Representatives could vote on separate zone

changes contained in one application, nowhere in Stamford Ridgeway Associates did this court conclude that the Board of Representatives’ authority

to vote on amendments is circumscribed by insufficient signatures. Indeed,

the words, ‘‘if there are sufficient signatures,’’ do not follow the Stamford

Ridgeway Associates quotation, as the majority suggests in footnote 11 of

its opinion. If such a phrase did appear, that would provide the majority

some traction for its assertion that a valid petition is a ‘‘condition precedent’’

to the exercise of the Board of Representatives’ authority. Instead, the words

‘‘sufficient’’ or ‘‘enough’’ appear only in quotations of Fuller’s written advice

or the trial court’s memorandum of decision in Stamford Ridgeway Associates, not in this court’s analysis or conclusion. See Stamford Ridgeway

Associates v. Board of Representatives, supra, 414, 417 n.5, 420, 426, 429.

7 The majority’s citation to Woldan v. Stamford, 22 Conn. Supp. 164, 167,

164 A.2d 306 (1960), to support the proposition that a ‘‘matter was not

properly before the [B]oard of [R]epresentatives’’ because the petition in

that case did not contain enough signatures as required by the charter is

unpersuasive, as this court has never so held. As I demonstrated, the purported invalidity of the petition has no bearing on the subsequent exercise

of legislative authority by the Board of Representatives.

8 Also, the majority cites Burke to indicate that a referral occurs only

‘‘ ‘[i]n th[e] event’ ’’ that a petition meets the signature provision. First, Burke

only restates the charter provisions at issue, and does so incorrectly and

without further analysis, as the relevant charter provision does not contain

the phrase, ‘‘in the event.’’ See generally Stamford Charter § C6-30-7. Second,

Burke pertained to whether the Board of Representatives had failed to give

notice and to provide a hearing, and could relegate review of the amendment

at issue to a committee; the suggestion that Burke stands for the proposition

that a referral occurs only ‘‘ ‘[i]n th[e] event’ ’’ that the petition contains

sufficient signatures is dictum at best. See Burke v. Board of Representatives,

supra, 148 Conn. 35.

9 The same would be true if the Planning Board had rejected the plaintiffs’

application, the plaintiffs petitioned for referral to the Board of Representatives pursuant to § C6-30-8, the Planning Board erroneously referred the
petition before validating the signatures, and the Board of Representatives

approved the plaintiffs’ proposed amendment. In my view, the Board of

Representatives’ action could not be undone by a court because of a supposed erroneous referral.