22 Conn. App. 627 | Conn. App. Ct. | 1990
Lead Opinion
The defendants appeal from the judgment of mandamus compelling the defendants, Helen Bray, the zoning enforcement officer of the town of Sherman, and William Piel, the chairman of the Sherman planning and zoning commission, to issue a zoning permit to the plaintiff. The plaintiff had sought the permit in order to construct a house on property he owned in Sherman. When his application was denied, the plaintiff filed this action seeking a mandamus. The dispositive question on appeal is whether the trial court should have proceeded to judgment in the absence of any pleadings other than a complaint. We conclude that it should not have done so, and, accordingly, we reverse.
An action for mandamus is a lawsuit like any other lawsuit. See Knibbs v. Knibbs Construction, Inc., 25 Conn. Sup. 253, 255, 202 A.2d 248 (1964). Practice Book § 542 requires that a mandamus action commence with service of a writ and complaint as in other civil actions,
In the present case, the defendants were served with the complaint on October 20,1988,
Mandamus actions clearly come within the scope of these rules. For example, § 259 includes a mandamus action among those matters privileged in respect to assignment for trial. It is thirteenth in priority on the list of twenty categories of privileged cases. If the pleadings are not closed, a case may not even be placed on the trial list, let alone be brought to trial. Wooding v. Zasciurinskas, 14 Conn. App. 164, 166, 540 A.2d 93 (1988).
Practice Book § 543 provides that an application for mandamus may be made in a pending action.
The plaintiff argues that his complaint sufficiently apprises the court of the facts necessary for the matter to be heard. This self-serving representation ignores the simple fact that “[i]t is impossible to determine what issues are decisive of the merits without benefit of an answer, and perhaps further pleadings such as special defenses and replies thereto.” Wooding v. Zasciurinskas, supra. “Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.” Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952). Proceeding to trial and final judgment
Finally, we are satisfied that the defendants properly brought their arguments regarding the state of the pleadings to the trial court’s attention during the course of the trial and in their posttrial brief, thereby satisfying Practice Book § 285A.
In view of our disposition of this issue, we do not reach the other questions raised on appeal, because it is not known whether the same issues will arise on retrial. We cannot forecast the nature of the pleadings that will be filed. Thus, we cannot speculate as to the issues of fact and law that may be raised when the pleadings are closed and the issues joined. Wooding v. Zasciurinskas, supra.
We turn now to the question of the proper disposition of this appeal. The complaint was apparently served without an accompanying writ. Consequently, the file does not contain the type of recognizance mandated by Practice Book § 542.
The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.
In this opinion Dupont, C. J., concurred.
Practice Book § 542 provides: “The writ and complaint in an original action shall be in the form used in, and served as are, ordinary civil actions, but with a distinct statement in the prayer for relief that an order in the nature of a mandamus is sought. No affidavit to the truth of the allegations of the complaint is required, and no bond or recognizance is necessary other than that ordinarily used in civil actions; and no bond or recognizance shall be required where the action is brought by a state’s attorney.”
Practice Book § 545 provides: “The defendant may file any proper motion directed to the allegations of the complaint, or, if he desires to attack their legal sufficiency in law, a motion to strike, or a return in the form of an answer, and further pleadings shall continue as in civil actions until issues are joined, provided that, where an application for an order is made in a pending action, the extent to which and the time in which the respondent may plead shall be as directed by the court.” (Emphasis added.)
The file does not contain an original writ, although a sheriffs return form indicates that one was served on the defendants on October 20,1988.
Practice Book § 543 provides: “An order in the nature of a mandamus may be made in aid of a pending action upon the application of any party,
We recognize that emergency situations allow hearings on such matters as temporary injunctions and temporary mandamuses without closing the pleadings. These are not, however, final judgments and are followed by full trials after a complete course of pleadings. The parties and the trial court are in agreement that Practice Book § 544 does not apply because a temporary order of mandamus was not sought.
The present case is not analogous to situations in which pleadings exist but have been drawn in a slovenly fashion; Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990); or in which, by intention or oversight, an answer fails to respond to one or more paragraphs of a complaint. Worden v. Francis, 153 Conn. 578, 584, 219 A.2d 442 (1966); Williamson, Ltd. v. Perry, 111 Conn. 317, 324, 150 A. 17 (1930).
The pertinent part of Practice Book § 285A provides: “If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief.”
The pertinent part of Practice Book § 4185 provides: “The [appellate] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The [appellate] court may in the interests of justice notice plain error not brought to the attention of the trial court.”
The file includes a surety bond of the type required for a temporary mandamus. That bond is defective, however, because plaintiffs counsel signed as the surety. Practice Book § 542.
Concurrence Opinion
concurring. The defendants appeal from the judgment of mandamus compelling the defendants, Helen Bray, the zoning enforcement officer of the town of Sherman, and William Piel, the chairman of the Sherman planning and zoning commission, to issue a zoning permit to the plaintiff. The defendants claim that the trial court should not have (1) found that the plaintiff had a clear and positive right to the zoning permit or issued the mandamus order, (2) refused to dismiss the case for want of subject matter jurisdiction due to the plaintiff’s alleged failure to exhaust administrative remedies, (3) proceeded to judgment before the pleadings were closed, and (4) issued an order of mandamus without a full administrative record. The majority found the third issue dispositive of the case.
The plaintiff owns five separate parcels of land on Skyline Drive, a private roadway in the Candlewood Lake Estates development in Sherman. The lots contain approximately six acres of land. Lots fourteen and
The plaintiffs construction plans were opposed by several of his neighbors, including the defendant Helen Bray, the town zoning enforcement officer, who walked her dog daily on the plaintiffs property. Other neighbors opposed to the planned construction were represented by counsel.
On February 9, 1987, the plaintiff submitted a plan for the septic system to the town sanitarian. This plan was rejected but a subsequent proposal, submitted February 20, 1987, was approved and the plaintiff received a septic permit. The plaintiff then applied for a zoning permit and a building permit to begin construction. On November 5,1987, the Sherman planning and zoning commission (commission) denied his application for a zoning permit because the state health code prevented the house and septic system from being built on separate lots. The plaintiff then applied to the state department of health for an exception to the same lot rule. The exception was granted subject to four conditions, which the trial court later determined had been subsequently met by the plaintiff.
On April 26,1988, the plaintiff again applied for a zoning permit to construct his dwelling. The commission
On June 2,1988, the defendant Bray issued the plaintiff a blasting permit to excavate an area in order to install the waste pipe running from the septic tank to the leaching fields. That same day, the commission met to consider the plaintiff’s zoning permit application. The chairman of the commission, Piel, later testified that James Bennett, an attorney representing a group of the plaintiff’s neighbors who opposed his construction plans, appeared before the commission ex parte and was able to convince the commission that the town counsel’s opinion was in error. Four days later, the commission denied the plaintiff’s application for a zoning permit.
The plaintiff appealed the commission’s decision to the town zoning board of appeals, which denied the appeal without reasons. The plaintiff then brought this mandamus proceeding. In granting the mandamus, the trial court found (1) that the Sherman sanitary code contained no requirement that the septic system be located on the same lot as the dwelling, (2) that the Sherman sanitary code made all provisions of the state public health code part of the Sherman code unless the town prescribed more stringent requirements, (3) that with regard to the plaintiff’s contemplated septic system, the town had not adopted a more stringent requirement than that of the state, (4) that the town
The court further stated in its articulation: “Her familiarity with the plaintiff, his property and her clear opposition to his application are factors that were weighed by the court. Mrs. Bray lived anywhere from three to six properties from the plaintiff and regularly walked her dog on his property. The plaintiff clearly raised the impropriety of Mrs. Bray’s conflict [to the trial court’s attention]. Prior to the decision of the planning and zoning commission on June 2,1988, denying the plaintiff’s zoning compliance permit, the defendant Bray stated to the plaintiff that he would never build on his lots and further admitted that she said, ‘Greg, you’re in deep shit.’ ”
The trial court also found in response to the defendant’s motion for articulation that “in discussing the opinion of the town attorney the defendant Piel said the commission also heard the opinion of Mr. Bennett who was representing Mr. Sperling and neighbors then and ‘who is our counsel here now. ’ Mr. Bennett’s opinion was clearly against the plaintiff’s application and was contrary to the opinion expressed by the town attorney.” (Emphasis added.)
Mandamus is an extraordinary remedy designed to enforce the performance of a plain positive duty, and will issue only when the person against whom it is directed is under clear obligation to perform the act compelled. Gerrity v. Bisciglia, 178 Conn. 235, 238, 423 A.2d 871 (1979); see also Kosinski v. Lawlor, 177
It is well established that mandamus will issue if the plaintiff can establish (1) that the plaintiff has a clear right to the performance of a duty by the defendant, (2) that the defendant has no discretion with respect to the performance of that duty, and (3) that the plaintiff has no adequate remedy at law. Vartuli v. Sotire, 192 Conn. 353, 365, 472 A.2d 336 (1984); Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, 179 Conn. 712, 717, 427 A.2d 866 (1980). In applying these principles to the circumstances of this case, I conclude that the trial court properly decided to issue an order of mandamus because the plaintiff met all three of the requirements of the three-prong test for such an order.
The trial court correctly found that neither the state zoning statutes nor the Sherman zoning regulations prohibit the building of a house on one lot and the placement of the leaching fields on another lot. The trial court found that all of the state’s conditions of the septic permit had been met, and that the septic permit had been issued. Even if all the conditions stipulated by the state for the septic permit had not been met at the time of the application of the zoning permit, nothing in the state statutes or regulations or in the Sherman zoning regulations charges the zoning authorities with the
On June 2,1988, Bray gave to the plaintiff a fill and blasting permit to complete the system. On June 6, 1988, the commission denied the zoning permit after having dealt with Bennett and his clients on an ex parte basis. The plaintiff and his attorney had no opportunity to participate. The defendants and the commission ignored the objective and correct advice of the town attorney that the plaintiff had the necessary septic approvals and that the zoning permit should issue.
The plaintiff has a clear right to the zoning permit and the defendants had a clear duty to issue it. Mandamus, therefore, will lie. Carr v. Woolwich, 7 Conn. App. 684, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986).
The defendants next argue that the plaintiff did not exhaust his administrative remedies in that he had an adequate remedy at law by way of an administrative appeal to the Superior Court from the town zoning board of appeals. He was, therefore, not entitled to a writ of mandamus, according to the defendants. I disagree.
In the present case, Bray, the defendant zoning enforcement officer, had a clear conflict of interest in that she is a neighbor of the plaintiffs and she utilized the plaintiffs presently vacant lots for walking her dog and she was actively trying to prevent him from using his property by a wrongful use of her position; she should not have been involved in this matter under any circumstances. The defendant Piel, as chairman of the commission, committed a clear violation of the plaintiffs due process rights to a fair hearing when the commission met with, ex parte, and heard argument by the
In this case, the bringing of an administrative appeal from the zoning board of appeals would do no more than vindicate the plaintiff in his position that the board was in error in upholding the commission’s and Bray’s refusal to issue the zoning compliance permit. It would
On the defendants’ third claim that the trial court should not have proceeded to judgment until the pleadings were closed, I concur with the majority. I am disturbed after reading the transcript that during two days of hearings the defendants never asked for a continuance or raised the issue of closing the pleadings. After the plaintiff presented his case, the defendants put on their witnesses. The only time the issue of pleadings was raised was in a posttrial brief filed two weeks after the hearing. A review of the record and the transcript has convinced me that the defendants’ had a fair hearing, on the subject of the mandamus, i.e. of the issuing of the zoning permit, and that the court came to a just result. I am bound, however, by the rule set forth in Doublewal Corporation v. Toffolon, 195 Conn. 384, 391, 488 A.2d 444 (1985), which states, “[t]he fact that the pleadings were not closed restricts the authority of the trial court to render permanent judgments on pending claims.”
I concur in the result.
