1 Conn. App. 621 | Conn. App. Ct. | 1984
This case raises the narrow issue of whether the defendant planning and zoning commission's failure to approve a subdivision plan with certain stipulations it had proposed constituted a disapproval of the plan under General Statutes
The plaintiff, claiming such statutory approval of its subdivision application, sought mandamus to compel the issuance of the permit. The trial court denied the request for a writ of mandamus and the plaintiff appealed.3
The relevant facts are not in dispute. On November 15, 1977, the plaintiff, Mildred Merlo, applied to the defendant planning and zoning commission of the town of Wethersfield for approval of a forty-two lot subdivision on land owned by her. On January 3, 1978, the defendant held a public hearing on the plaintiff's application. On March 7, 1978, and May 2, 1978, the defendant granted the plaintiff's request for two successive sixty-five day extensions of the statutory deadline for a decision by the commission. At a meeting on June 22, 1978, the subject of final approval of the plaintiff's application was brought up for action. Commissioner *623 Larkin moved for approval of the application with certain stipulations which he proposed. There was a lengthy discussion of various aspects of the proposed subdivision.
The vote on the motion to approve the subdivision plan as amended was four "ayes" and five "nayes." The minutes of the meeting state: "Therefore, the motion, with stipulations, was DISAPPROVED." There was no further action taken on the application. The clerk for the commission published a legal notice on June 28, 1978, concerning the action taken on the plaintiff's application with the statement "motion to approve FAILED TO CARRY. Therefore this application was DENIED." The last day allowed by statute for a decision was July 18, 1978. On August 8, 1978, the plaintiff demanded that the commission issue a certificate of subdivision approval because of the commission's failure to "approve, modify and approve, or disapprove the application" as required by General Statutes
The trial court held that the defeat of the motion to approve the application constituted a denial of the application. The court, in its holding, referred to the cases of Hall v. Planning Zoning Board,
The plaintiff briefed two main issues: (1) that the court erred in finding a valid disapproval of the plaintiff's application since the action was not one of the three actions specifically authorized under General Statutes
The commission's failure to approve the application with stipulations is not one of the three dispositions authorized in
In Carpenter v. Planning Zoning Commission,
In Finn v. Planning Zoning Commission,
We do not consider that the cases of Hall v. Planning Zoning Board,
These cases fall short of interpreting the action of the commission in this case as a disapproval under the statute. They simply stand for the proposition that if a majority of votes is necessary for approval of a change of zone, the failure to secure such a majority means the application was denied. This is a far cry from the specific statutory mandate of
Nor do we find the reasoning of Allard v. Thalheimer,
We conclude that the trial court was in error in finding that the defendant commission's action in this case constituted disapproval under the statute.
The case of Milford Education Assn. v. Board of Education,
In a similar automatic approval case, State ex rel. Brooks v. Hitchcock,
Mandamus was approved by the Supreme Court as the appropriate remedy in an action alleging automatic approval in M L Homes, Inc. v. Zoning Planning Commission,
There is error, the judgment is set aside and the case is remanded with direction to render judgment ordering the defendant planning and zoning commission of the town of Wethersfield to issue a certificate of approval of the plaintiff's subdivision and to endorse the approval on the subdivision map as required by law.
In this opinion the other judges concurred.