97 Conn. App. 783 | Conn. App. Ct. | 2006
Opinion
In this consolidated appeal, the plaintiffs in docket number AC 26597, Luigi Cammarota and Lynn Cammarota, appeal from the judgment of the trial court denying their application for a writ of mandamus for automatic approval of their subdivision application. Their nine separate issues on appeal center on the single claim that the court improperly determined that the defendant, the planning and zoning commission of the town of Trumbull (commission), adequately complied with the time requirements necessary to review their application pursuant to General Statutes §§ 8-26 and 8-7d.
I
CAMMAROTA v. PLANNING AND ZONING COMMISSION
The Cammarotas own property at 97 Church Hill Road, Trumbull, where they also reside. On October 29, 2003, they filed an application with the commission for subdivision approval, proposing to subdivide their property into two lots. The commission scheduled a public hearing for November 19, 2003, its next regularly scheduled meeting date, and published notice of the public hearing in the Connecticut Post on November 8 and 11, 2003.
On January 16, 2004, the commission informed the Cammarotas that the January 21 public hearing was canceled and would be rescheduled because notice of the hearing had not been published. On February 4, 2004, the Cammarotas sent a letter stating that “[m]ore than sixty-five . . . days ha[ve] passed since the application’s receipt date without the holding of a public hearing. Therefore . . . the Cammarotas’ subdivision application is automatically approved.” On February 5, 2004, the commission responded by letter that the town attorney had advised it that the Cammarotas were not entitled to an automatic approval. The public hearing was rescheduled for February 18, 2004, and notice was published in the Connecticut Post on February 7 and 13, 2004.
On February 18, 2004, the Cammarotas’ attorney sent a letter stating: “Based upon the automatic approval of [the Cammarotas’] subdivision, the [commission] does not have a basis for conducting a public hearing on same. As such, neither myself nor my clients will be attending the [commission’s] meeting this evening.” With the letter, the Cammarotas also included a copy of the complaint they had filed in court, seeking a writ of mandamus to compel the commission to issue a
A trial to the court was held on the Cammarotas’ amended complaint on May 5,2005, and the court issued a memorandum of decision on May 11, 2005, denying the application for a writ of mandamus. This appeal followed. The Cammarotas claim that the court improperly denied their application because the commission did not act wdthin the time requirements of § 8-7d as applied to subdivision applications in § 8-26, thus mandating approval of their application. We disagree.
We begin our analysis by setting forth the applicable standard of review. “In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . Nevertheless, this court will overturn a lower court’s judgment if it has committed a clear error or if it has misconceived the law.” (Citation omitted; internal quotation marks omitted.) Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, 278 Conn. 408, 412, 898 A.2d 157 (2006).
“Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. ... It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law. . . . That discretion will be exercised in favor of issuing
The Cammarotas maintain that they have a “clear legal right” for an automatic approval on their subdivision application because the commission failed to act within the time constraints of § 8-7d.
A
Section 8-7d provides that when a hearing is required or otherwise held for applications to a planning and zoning commission, “such hearing shall commence within sixty-five days after receipt of such . . . application . . . .” The Cammarotas filed their application on October 29, 2003, and the commission scheduled a public hearing for the application on the next regularly
The Cammarotas claim that the public hearing never was opened on November 19, 2003, because a hearing need not be commenced to be continued.
B
Section 8-7d (a) in relevant part requires that the “hearing . . . shall be completed within thirty-five days after such hearing commences . . . .” The Cam-marotas’ attorney requested two extensions
As we already have determined that the public hearing commenced on November 19, 2003, the question before us is whether it was completed within the thirty-five day time period mandated by § 8-7d. Section 8-7d (a) provides in relevant part: “The petitioner or applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of all such periods shall not be for longer than sixty-five days . . . .” February 18, 2004, the day the public hearing was completed, falls ninety-one days after the day the hearing commenced. Thus, if the requests for extensions to which the Cammarotas consented fell within the sixty-five day extension period, and the hearing was completed within thirty-five days of those extensions, then the commission complied with the provisions of § 8-7d.
Although it concerns the sixty-five day period after the completion of the public hearing as opposed to the
The statute provides that either the petitioner or applicant may consent to extensions of the statutory time periods. By their letters to the commission, the Cammarotas clearly consented to extensions. In Metropolitan Homes, Inc. v. Town Plan & Zoning Commission, 152 Conn. 7, 202 A.2d 241 (1964), the plaintiff claimed approval of its subdivision application because the commission had acted beyond the time permitted in the relevant statute. Id., 14. Nevertheless, our Supreme Court noted that “[t]he plaintiffs representative clearly indicated the willingness of the plaintiff to wait for [action by the town] before going ahead. Thus, it appears that the plaintiff consented to an extension of
To read the sixty-five day extension as subsuming the statutory time period for completing the hearing would be illogical. If an applicant consented to an extension of sixty-five days, for example, a commission would be forced to take action immediately thereafter rather than within the time allowed by the express language of § 8-7d. Therefore, a fair reading of the statute reveals that the time for an extension would be in addition to the time allotted for the commission to act. “Common sense and the phrasing of the statute would suggest that the extension would run from the end of the original time period, not when the applicant grants it . . . .” Mileski v. Planning & Zoning Commission, Superior Court, judicial district of Ansonia-Milford, Docket No. CV89-030284S (July 24, 1990). Although we agree that the legislative purpose of limiting the amount of time a subdivision application could remain before a commission was to expedite the process; see, e.g., Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, supra, 278 Conn. 423-24 (noting that 2003 amendment to § 8-7d [b] limiting time of extension from
C
Finally, § 8-7d provides in relevant part that “[a]ll decisions on such matters shall be rendered within sixty-five days after completion of such hearing . . . .” The public hearing was completed on February 18,2004, and the commission voted to deny the subdivision application on March 25,2004. On March 29, the commission sent the Cammarotas a letter stating that it had voted to deny the application, and notice of such was published on March 30, in the Connecticut Post. Because a decision was rendered within sixty-five days of the completion of the hearing, the commission was in compliance with the time requirements of § 8-7d. As they have not exhibited a “clear legal right” to have their subdivision application approved, the Cammarotas’ mandamus action does not lie.
II
KOENIG v. PLANNING AND ZONING COMMISSION
The Koenig neighbors filed an appeal in order to preserve their rights pursuant to § 8-8 (c) in the event that the court approved the Cammarotas’ application
“Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When . . . events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Brown v. Brown, 69 Conn. App. 209, 211-12, 794 A.2d 550 (2002). Because we affirm the judgment of the trial court and conclude that the Cammarotas’ application for a writ of mandamus was denied properly, the action by the Koenig neighbors is moot.
In this opinion the other judges concurred.
General Statutes § 8-26, regarding the approval of subdivision plans, refers to General Statutes § 8-7d for the applicable time periods for public hearings held on the applications. General Statutes § 8-26 provides in relevant part: “All plans for subdivisions . . . shall be submitted to the commission with an application in the form to be prescribed by it. . . . The commission may hold a public hearing regarding any subdivision proposal if, in its judgment, the specific circumstances require such action. . . . Such public hearing shall be held in accordance with the provisions of section 8-7d. . . . The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand. . . .”
General Statutes § 8-7d (a) provides in relevant part: “In all matters wherein [an] application . . . must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter . . . and a hearing is required or otherwise held on such . . . application . . . such hearing shall commence within sixty-five days after receipt of such . . . application . . . and shall be completed within thirty-five days after such hearing commences .... All decisions on such matters shall
Aside from Richard Koenig, the other neighbors involved in the appeal in docket number AC 26837 are Patricia Koenig, Edward Flans, Stephanie Flans, Edward Bader, Elaine Bader, Stephen M. Halloran, Genevieve R. Halloran, Tom Prizio, Kelly Prizio, Deborah West, Guy Dattolo, Linda Dattolo and Kurt Laursen.
General Statutes § 8-8 (c) provides: “In those situations where the approval of a planning commission must be inferred because of the failure of the commission to act on an application, any aggrieved person may appeal under this section. The appeal shall be taken within twenty days after the expiration of the period prescribed in section 8-26d for action by the commission.”
The scope of the planning commission’s authority to grant a subdivision application under General Statutes §§ 8-26 and 8-7d is a question of statutory interpretation over which our review is plenary. See River Bend Associates, Inc. v. Planning Commission, 271 Conn. 41, 55, 856 A.2d 959 (2004). “Relevant legislation and precedent guide the process of statutory interpretation. [General Statutes § l-2z] provides that, [t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, supra, 278 Conn. 421-22.
In support of their claim that the public hearing did not commence on November 19, 2003, the Cammarotas cite 1R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) (2005 pocket part) § 18.4, p. 66, which states that “[a] public hearing can be continued at an agency meeting to another date without formally opening the public hearing.” We note, however, that the case cited by Fuller for this proposition, Beeman v. Planning & Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV99-0427275 (April 27, 2000) (27 Conn. L. Rptr. 77, 78), involving a special permit application, specified that “[tjhere is no requirement that correspondence be read or testimony taken before a continuance of public hearing may be voted. . . . The [cjourt finds that the notice of public hearing on the subject application was properly and timely published, in compliance with the requirements of statute and that said hearing was properly commenced and continued.” (Emphasis added.)
Although the Cammarotas assert that the continuances they requested are distinct from the extensions included in the statute, they cite to no case law, and we are unaware of any, that differentiates a continuance from an extension in the realm of applications to a planning and zoning commission. Therefore, for clarity in this section, we will refer to the Cammarotas’ requests as being for extensions.
The letter received on November 19, 2003, stated that “[t]he applicants’ engineer requires additional time to complete plans necessary to address the town’s engineering department’s comments regarding the application,” and the one received on December 17, 2003, stated that “[t]he applicants require additional time to obtain approvals from the state of Connecticut for the necessary sewer and drainage easement. Further, following an additional discussion with the town’s engineering department, several amendments are to be made to the plans.”
The Cammarotas maintained throughout this action that the public hearing had never commenced, and therefore the time period at issue was the sixty-five days in which the hearing must commence.
Even if the Cammarotas had shown that the commission had not complied with the time limitations of General Statutes § 8-7d, however, “principles of equity and justice may militate against [a writ’s] issuance. Courts have discretion to consider equitable principles when deciding whether to issue the writ.” Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, supra, 278 Conn. 418. Because the commission complied with the appropriate time limitations, we need not consider the equitable principles that may be applicable in denying a writ of mandamus.