44 Conn. App. 542 | Conn. App. Ct. | 1997
In this consolidated appeal, the defendants Luciano Angeloni and Debra Angeloni, owners of certain real property in the town of Redding, and the defendant Redding zoning commission (commission) filed separate appeals from the judgment of the trial court, sustaining the plaintiff Richard Lauer’s
The record reveals the following facts. The Angelonis obtained a special permit in 1989 to operate a riding academy in a residential zone in Redding. The 1989 permit allowed the owners to board a maximum of twenty-five horses at the academy.
I
As a threshold issue, the Angelonis claim that the trial court improperly failed to set aside the April 3 order and to declare a mistrial for noncompliance with the 120 day rule contained in § 51-183b. We agree.
Section 51-183b provides that a judge “shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. . . .” Practice Book § 334A (a) provides in pertinent part that “in judgments in trials to the court in civil . . . matters . . . the court shall, either orally or in writing, state its decision on the issues in the matter. The court shall include in its decision its conclusion as to each claim of law raised by the parties and the factual basis therefor. . . .”
“[T]he defect in a late judgment is that it implicates the trial court’s power to continue to exercise jurisdiction over the parties before it. Whitaker v. Cannon Mills Co., 132 Conn. 434, 438, 45 A.2d 120 (1945); Foley v.
In this case, the trial court issued an order sustaining the appeal 119 days after trial was completed, but did not issue its memorandum of decision until 143 days after trial. The trial court did not obtain a waiver of the 120 day period from the parties involved in this appeal, nor did the owners expressly or impliedly waive their rights.
We conclude that the order issued 119 days after trial was not in compliance with § 51-183b.
II
The Angelonis and the commission claim that the trial court improperly concluded that the disputed portion of § 5.1.2 of the Redding zoning regulations was mandatory rather than directory. We address this legal issue because it has been briefed and argued by the parties and should not become an issue on retrial.
Section 5.1.2 of the Redding zoning regulations provides in pertinent part: “Application materials may be submitted to the Zoning office or to a regularly scheduled meeting of the Commission. . . . One copy of the application, including all maps, plans and reports, shall
In general, the word “shall” is mandatory, not directory. Langan v. Weeks, 37 Conn. App. 105, 121, 655 A.2d 771 (1995). Use of the word “shall,” however, does not always indicate that a clause is mandatory. Id. The determination must focus on “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 [regulatory] provision is mandatory. . . .If, however, the . . . provision is designed to secure order, system and dispatch ... it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. . . . Such a [regulatory] provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.” (Citations omitted; internal quotation marks omitted.) Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985). Where the regulation contains no penalty for noncompliance, or where the language purports to establish procedure, it is deemed to be directory. Langan v. Weeks, supra, 122.
We conclude that § 5.1.2 is directory in nature, rather than mandatory. First, this regulation is found in the “Procedure” section of the zoning regulations. See, e.g., Arrieu v. Litchfield, 17 Conn. App. 320, 324, 552 A.2d 445 (1989). Second, the regulation does not contain language to invalidate actions that are not in compliance. Finally, § 5.1.2 sets forth a manner in which the zoning board seeks advisory opinions from town agencies and is designed merely to secure order, system and dispatch.
In this opinion the other judges concurred.
Richard Lauer owns property across a town road from the Angelonis’ riding academy. Janice Pomazi joined Richard Lauer in his appeal to tire Superior Court. The trial court found, however, that Pomazi lacked standing to appeal the granting of the permit because she did not have a specific personal and legal interest in the matter. She is not a party to this appeal. We refer in this opinion to Lauer as the plaintiff.
The issuance of the 1989 permit was upheld in Lauer v. Zoning Covnmission, 220 Conn. 455, 600 A.2d 310 (1991).
General Statutes § 51-183b provides: “Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”
We are mindful of the demands on the trial court, however, the procedure used here was inappropriate.
Practice Book § 4009 (a) provides in pertinent part: “Except where a different time is provided by statute, a party shall have twenty days from the commencement of the appeal period. . . . [T]he appeal period shall commence on the date notice of the judgment or decision is given. . . .” Practice Book § 4142 provides that a party shall have twenty days from the time notice of the trial court’s decision is issued to file a petition for certification. Section 4142.1 provides in pertinent part: “(a) A petition for certification shall contain the following sections in the order indicated here:
“(1) A statement of the questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail.
“(2) A statement of the basis for certification identifying the specific reasons why the appellate court should allow the extraordinary relief of certification. ...”