You asked if the Morningside Association (MA) can amend its charter to (1) establish a zoning commission and (2) allow voters to recall executive board members. The answer to both questions requires a legal opinion, which the Office of Legislative Research cannot give. Consequently, you should not regard this report as providing one.

SUMMARY

MA cannot amend its charter to establish a zoning commission or allow voters to recall its executive board members. The reasons stem from its history. MA is a special taxing district that was formed under a 1921 special act. Consequently, it (and other districts formed under special acts) could not amend its act on its own but had to ask the legislature to do so for it. MA did not request any amendments. In 1893, the legislature provided an alternative to its creating districts by special act. The alternative is a statutory procedure for residents to form districts on their own (i.e., statutory districts).

In 1963, the legislature amended these statutes to allow the special act districts like MA to amend their special acts without the legislature's permission. It allowed them to convert their special act charters into home rule charters by following the procedure for adopting and amending a municipal charter. And it allowed them to do so without

forfeiting any of the powers the original acts and any subsequent amendments granted them. But the legislature also prohibited the districts from assuming a power it did not grant to the statutory districts.

MA converted its special act charter into a home rule charter in 1972. Consequently, whether it can establish a zoning commission and provide for the recall of its executive board members depends on whether these powers were included in its original special act. That act did not appear to grant those powers. Although it allowed MA's executive board to establish building lines, it did not explicitly allow MA to create a separate commission and determine where different types of uses are allowed (i.e., the essence of zoning). In addition, the special district and zoning statutes suggest that the legislature regards zoning as a municipal function.

Nor does it appear that MA can amend its charter to provide for recall. Its original special act allowed voters to annually elect board members, but was silent about whether they could recall them. The statutes are also silent about whether municipalities and statutory special districts can recall elected officials. The lack of explicit recall authority suggests that the legislature has not granted this power. We base this conclusion on Connecticut Supreme Court decisions upholding a municipal recall provision that was included in a special act charter the legislature approved before 1959, when it allowed municipalities to adopt and amend charters on their own.

SPECIAL ACT DISTRICT

The answer to both questions requires us to review when and how the MA was formed. MA is a special taxing district organized to provide a range of municipal services. Like many other districts, MA was established by a special act the legislature enacted on behalf of an area's residents to provide specified services. This practice allowed the legislature to customize the district's powers and governance structure to suit the residents' particular needs. But it also required residents to petition the legislature each time they wanted to amend the act.

In 1893, the legislature switched gears and enacted a statute allowing residents to form districts on their own. It appears that it did so to reduce requests for new special districts and the subsequent debates on local matters (Independing Special Taxing Districts in Connecticut, Advisory Commission on Intergovernmental Relations, December 1988, pp. 17-18).

The legislature amended this statute in 1963 to allows existing special act districts to convert those acts into home rule charters by following the procedure for adopting and amending a municipal charter (CGS § 7-328a). It allows them to do so without forfeiting any of the powers their special acts and any subsequent amendments granted them.

The statute also allows districts to amend their home rule charter without requesting special legislation. But it also prohibited them from adopting any amendment that would give them “any authority exceeding that granted to districts under this [special district] chapter.” In other words, a district can amend a power granted under the original special act, but it cannot assume one the statutes did not grant to the statutory districts.

We applied these provisions to determine if MA can amend its home rule charter to establish a zoning commission or adopt recall provisions.

ESTABLISHING A ZONING COMMISSION

Whether MA can amend its charter to establish a zoning commission turns on whether its original 1921 special act granted the district zoning powers. It does not appear that the act did so.

The special act does not authorize the district to establish a zoning commission or designate zoning districts, even though it authorizes the board to “establish building lines and regulate the construction of buildings” (§ 9). Establishing building lines is part of a broader zoning system, but

The basic elements of a zoning system are the arranging of a municipality's land into various districts. The [zoning] regulations must apply uniformly within each district to ensure compatibility of use as well as to ensure that governmental intrusion is applied even-handedly. The decision on the location of the districts and the rules that apply within them result from comprehensive planning by the municipality for its economic and social development (Tondro, Connecticut Land Use Regulation, 2ed, 1992, p. 35).

These elements are evident in the 1925 statute authorizing municipalities to adopt zoning powers (CGS § 8-2). Besides regulating building height, lot size, and population density, the statute allows municipal zoning commissions to “divide the municipality into districts of

such number, shape and area as may be best suited to carry out the purpose of this chapter…” This power is not evident in MA's 1921 special act.

Arguably, MA could create a zoning commission if its host town, Milford did not already have one. As noted above, districts adopting or amending a special act charter can assume a power granted to statutory districts. Statutory districts can exercise zoning and planning powers, but only until their host towns adopt those powers (CGS § 7-326). This fact suggests that the legislature regards regulating land use as town function.

RECALL

It does not appear that MA can adopt a charter provision allowing voters to recall executive board members because its original special act did not explicitly grant this power. The charter required voters to annually elect MA's five-member board at the association's annual meeting (§ 5). It also required the board to elect officers from its own members and specified that they “shall hold office until the third Saturday in July next succeeding or until their successors shall be appointed…” (§ 6).

Our conclusion appears to be consistent with court decisions regarding the recall of city and town officials. The Connecticut Supreme Court has upheld recall provisions only if they were authorized under a municipal special act charter enacted before the 1959 home rule act (Simons v. Canty, 195 Conn. 524 (1985)).

In reaching this decision, the court noted that the statutes were silent on whether municipalities could adopt ordinances or charter provisions authorizing recall. But it interpreted this silence to mean that the legislature did not explicitly authorized recall powers. The court also determined that recalling elected officials was not implied in any of the specified municipal powers. Consequently, it ruled that municipalities operating under the statutes (instead of a special act charter) could not recall elected officials.

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