253 Conn. 381 | Conn. | 2000
Opinion
The dispositive issue in this appeal is whether a planning and zoning commission’s rejection of a subdivision application constitutes action within
The Appellate Court affirmed the trial court’s judgment. Miles v. Foley, 54 Conn. App. 645, 647, 736 A.2d 180 (1999). We granted the plaintiffs amended order for petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that the plaintiff was not entitled to a judgment of mandamus that the defendant commission approve the plaintiffs subdivision?” Miles v. Foley, 251 Conn. 925, 739 A.2d 1248 (1999). We affirm the judgment of the Appellate Court.
The following facts, as set forth by the Appellate Court, are relevant to this appeal. “On May 20, 1996, the plaintiffs agent delivered a subdivision application" to the commission in accordance with § 8-26. The following day, at the regular commission meeting, the commission discussed the plaintiff’s proposed subdivision application and unanimously voted to reject the application because it was premature.
“On July 7,1997, the trial court issued an order denying the plaintiffs motion for summary judgment and granting the defendants’ motions for summary judgment. The reason that the trial court denied the plaintiffs motion for summary judgment was that it found that the vote of the commission rejecting the plaintiffs subdivision application was action within the meaning of § 8-26, as interpreted by the Supreme Court in Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 311-12, 592 A.2d 953 (1991). Therefore, the trial court reasoned that the rejection precluded the automatic approval of the subdivision application. The trial court granted the defendants’ motions for summary judgment because the plaintiff failed to demonstrate that the commission did not act within sixty-five days, as required for automatic approval pursuant to § 8-26 and, therefore, the trial court reasoned that the mandamus action did not lie.” Miles v. Foley, supra, 54 Conn. App. 647-48.
I
We begin with the appropriate standard of review. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United
II
The plaintiff claims that the trial court improperly concluded that he was not entitled to a judgment of mandamus. He argues that the commission’s rejection of the subdivision application does not constitute action within the meaning of § 8-26 and, therefore, the commission failed to act within the statutorily prescribed sixty-five day time limit of General Statutes § 8-26d (b).
The defendants argue that our holding in Winchester Woods Associates v. Planning & Zoning Commission,
In Winchester Woods Associates v. Planning & Zoning Commission, supra, 219 Conn. 305, this court considered whether a plaintiff applicant was entitled to automatic approval when the defendant commission had voted not to accept the application because an appeal of the commission’s denial of the same, earlier submitted application was still pending in Superior Court. We concluded that the plaintiff was not entitled to automatic approval because the commission had acted within the sixty-five day time period prescribed by § 8-26 by its vote not to accept the plaintiffs application. Id., 313-14. “Under §§ 8-26 and 8-26d (b), the failure of the commission to ‘approve, modify and approve, or disapprove’ a subdivision or resubdivision application, on which no hearing is held, within sixty-five days after receipt of such application results in the sanction of automatic approval. See Merlo v. Planning & Zoning Commission, 196 Conn. 676, 682, 495 A.2d 268 (1985). Section 8-26d (c) defines the day of receipt of an application as ‘the day of the next regularly scheduled meeting of such commission . . . immediately following the day of submission to such . . . commission ... or thirty-five days after submission, whichever is sooner.’ ” Winchester Woods Associates v. Planning & Zoning Commission, supra, 312.
In Winchester Woods Associates, the commission had voted not to accept the plaintiffs application because, it claimed, “this was the second application on the same piece of property, the first application was pending in litigation and the commission wished to preclude the
We conclude that Winchester Woods Associates is dispositive of the present case. Here, there is no dispute that the plaintiffs subdivision application was delivered to the commission on May 20, 1996, and that it was discussed at the commission’s next regularly scheduled meeting on May 21, 1996. At that meeting, the commission unanimously voted to reject the application. As in Winchester Woods Associates, the substance of the commission’s conduct here is irrelevant. What is relevant is that there was conduct. In Winchester Woods Associates, we concluded that the commission’s action — although erroneous in that it was an abuse of the commission’s discretion — was, indeed, action that, for the purposes of § 8-26, precluded automatic approval. Id.
In Merlo, we concluded that the commission had acted in accordance with § 8-26 when, at its regularly scheduled meeting, it moved to approve the plaintiffs application subject to three stipulations. Id., 679. After the ensuing discussion, the motion was disapproved. A legal notice was later published stating that the “ ‘motion to approve FAILED TO CARRY: Therefore this application was DENIED.’ ” Id. We reversed the judgment of the Appellate Court, concluding that “the defeat of the motion to approve the application subject to the stipulations proposed by the movant constituted ‘disapproval’ of the application within the intent of the statute.” Id., 682. Our focus in Merlo properly was on the action of the commission, not the specific nature of that action. Our focus here is similarly placed.
As we indicated in Winchester Woods Associates v. Planning & Zoning Commission, supra, 219 Conn. 313, it is possible for the commission’s action to satisfy § 8-26 and still be void as an abuse of the commission’s discretion. In the present case, we need not reach the issue of whether the commission’s action was an abuse of its discretion. The only certified issue before us is whether the commission’s response constituted action within the meaning of § 8-26. Because we conclude that it does, the automatic approval doctrine of § 8-26 is not activated.
Ill
We now turn to the question of whether mandamus is an appropriate remedy. Since we have concluded that the automatic approval of § 8-26 is inapplicable in the present case, it is clear that a writ of mandamus does not lie.
As the Appellate Court correctly concluded, there was no approval of the plaintiffs subdivision application pursuant to the automatic approval doctrine of § 8-26. Therefore, the plaintiff is not entitled to “a clear legal right to have the duty performed . . . .” (Internal quotation marks omitted.) Id. Without the satisfaction of this crucial prong, the extraordinary writ of mandamus was not compelled.
The plaintiff would have been entitled to an administrative appeal of the commission’s decision not to process the application. The plaintiffs argument that “an appeal would be a meaningless and time consuming round trip from the [c]ommission to the Superior Court and back, as opposed to the effective and expeditious remedy of mandamus” is neither a compelling argument in favor of mandamus, nor an argument challenging the appropriateness of an appeal. If such an appeal had been timely and the Superior Court considered the acMon of the commission to be improper, it would have indeed returned the application to the commission with
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
General Statutes § 8-26 provides in relevant part: “All plans for subdivisions and resubdivisions . . . shall be submitted to the commission with an application in the form to be prescribed by it . . . The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith . . . within the period of time permitted under section 8-26d. Notice of the decision of the commission shall be published in a newspaper having a substantial circulation in the municipality . . . within fifteen days after such decision has been rendered. . . . Such notice shall be a simple statement that such application was approved, modified and approved or disapproved, together with the date of such action. 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. The grounds for its action shall be stated in the records of the commission. No planning commission shall be required to consider an application for approval of a subdivision plan while another application for subdivision of the same or substantially the same parcel is pending before the commission. For the purposes of this section, an application is not ‘pending before the commission’ if the commission has rendered a decision with respect to such application and such decision has been appealed to the Superior Court. If an application involves land regulated as an inland wetland or watercourse under the provisions of chapter 440, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for the subdivision or resubdivision. The commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency. ...”
Throughout this opinion, the municipal defendants and the intervening defendants will be referred to collectively as the defendants.
“The commission noted that the subdivision property ‘had recently been the subject of a hearing before the environmental commission, and that their decision had been appealed to the Superior Court.’ Thereafter, the commission ‘unanimously voted to reject the application since it is premature, and if a zoning permit were requested upon approval of such a subdivision, it would be denied under § 60-3.12.A. (2)’ of the New Canaan zoning regulations.” Miles v. Foley, supra, 54 Conn. App. 647-48 n.4.
General Statutes § 8-26d (b) provides in relevant part: “A decision on an application for subdivision approval, on which no hearing is held, shall be rendered within sixty-five days after receipt of such application. . . .”
We reject the plaintiffs argument that subsequent revision to § 8-26 has served to negate our holding in Winchester Woods Associates. Public Acts 1992, No. 92-191, the legislative revision in question, focused only on the commission’s obligation to consider an application while a similar or identical application was already pending before the commission and not whether certain decisions by the commission constituted “action” for the purposes of § 8-26. As the legislative history of Public Act 92-191 reveals, “[t]his bill is dealing with zoning statutes of your municipalities. For all subdivision. And what it says is that if somebody doesn’t like the decision of the zoning authority and they take it to court, while it is waiting to be processed in the court system, they can take and file another application for a different subdivision. And I guess they could do that over and over again. That is