40 Conn. App. 840 | Conn. App. Ct. | 1996
The defendant Minor Farm Limited Partnership
The following facts are relevant to the resolution of this appeal. On February 11, 1991, the defendant submitted an “Application for Subdivision/Resubdivision Approval” to the commission. The defendant sought permission to subdivide 19.36 acres of land located in West Haven into sixty-one residential lots. The defendant’s land was located in an R-3 zone. The application did not contain any request for a variance or for a waiver of the subdivision regulations. The commission held public hearings on the application on June 11 and July 9,1991. All lots in the proposed subdivision complied with the lot size and frontage requirements of the zoning regulations. The West Haven planning and zoning regulations provide that the minimum lot size in an R-3 residential district is 6000 square feet, and each lot must have a minimum of fifty feet of street
Following the approval of the application, the plaintiffs appealed to the Superior Court challenging the granting of the subdivision application. In their appeal, the plaintiffs claimed that the decision violated a subdivision regulation that required that the lot size in any subdivision be at least 12,000 square feet with a 100 foot street frontage.
The trial court determined that the commission had no authority under General Statutes § 8-26
I
The defendant first claims that the appeal to the trial court was moot as a result of an amendment to the zoning regulations at issue. The defendant argues that because the plaintiffs’ claim was moot, the defendant’s subdivision approval must be affirmed.
After the plaintiffs’ appeal of the commission decision and before the trial court decision, the subdivision regulations were amended to conform to the less restrictive lot size and frontage requirements of the zoning regulations. The trial court’s memorandum of decision made
The defendant argues that because its application would conform to the subdivision regulations as amended, the trial court should have dismissed the plaintiffs’ appeal as moot. The conformance of the application to the amended regulations, however, was not before the commission and, likewise, was not before the trial court. It was not, therefore, the function of the trial court to determine whether the application conformed to the subdivision regulations as amended. “The commission is entrusted with the function of interpreting and applying its . . . regulations”; Gorman Construction Co. v. Planning & Zoning Commission, 35 Conn. App. 191, 195, 644 A.2d 964 (1994), citing Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560, 236 A.2d 96 (1967); and for a court to undertake that function in this case “would be an impermissible judicial usurpation of the administrative functions of the authority.” Bogue v. Zoning Board of Appeals, 165 Conn. 749, 754, 345 A.2d 9 (1974).
We conclude that the plaintiffs’ appeal to the trial court was not moot. The trial court properly considered only whether the defendant’s subdivision application conformed to the regulations in effect when the application was filed. See General Statutes § 8-2h (a). The trial court afforded the plaintiffs the practical relief of sustaining their appeal of the commission’s approval of an
II
The defendant next claims that the trial court improperly determined that the regulation applied to the defendant’s application. It is the trial court’s function to “ ‘determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. . . . The trial court can sustain the [plaintiffs] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary, or illegal ....’” (Citations omitted.) Gorman Construction Co. v. Planning & Zoning Commission, supra, 35 Conn. App. 195, quoting Baron v. Planning & Zoning Commission, 22 Conn. App. 255, 257, 576 A.2d 589 (1990).
The trial court held that the commission lacked authority to approve a subdivision plan that did not conform to the subdivision requirements without a valid waiver of the requirements.
“It is an appellate court function to determine whether the judgment of the trial court was clearly
The defendant relies principally here, as it did in the trial court, on Cristofaro v. Burlington, 217 Conn. 103, 584 A.2d 1168 (1991) (Cristofaro II), to support its position that the subdivision regulation is invalid and, for that reason, was not applied by the commission. The defendant argues that, under Cristofaro II, the commission could not enact and apply a subdivision regulation that established a minimum lot size that conflicted with the zoning regulation. The defendant posits that the commission never applied the subdivision regulation to its application because both the defendant and the commission treated the regulation as invalid. The defendant concedes, however, that the “invalidity” was never made a matter of record by the defendant or the commission.
The defendant further contends, in response to the argument that it should have brought a declaratory judgment action to challenge the subdivision regulation, that it could not have brought such action after it had obtained the subdivision approval. In effect, the defendant argues that, rather than challenging the allegedly invalid regulation before seeking subdivision approval, it was sufficient merely to treat the regulation as invalid. We disagree with the defendant’s arguments.
The holding of Cristofaro II does not support the defendant’s position for several reasons. The principal reason is that, in this case, the defendant, after seeking subdivision approval, now attempts to challenge the validity of the regulations enacted by the commission in the course of defending against this appeal rather than in a declaratory judgment action. The defendant’s
The commission lacked the authority to declare its own regulation invalid without notice to any party that it intended to do so. A commission is not at liberty to ignore its existing regulations and to treat them as invalid. See Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 374, 387, 610 A.2d 617 (1992); Reed v. Planning & Zoning Commission, 12 Conn. App. 153, 156, 529 A.2d 1338 (1987), aff'd, 208 Conn. 431, 544 A.2d 1213 (1988). When acting in a legislative capacity, a zoning commission “is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. . . . Parks v. Planning & Zoning Commission, [178 Conn. 657, 660, 425 A.2d 100 (1979)]. In contrast, when acting in an administrative capacity, a zoning commission’s more limited function is to determine whether the applicant’s proposed use is one which satisfies the standards set forth in the regulations and statutes.” (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 505-506 n.10, 636 A.2d 1342 (1994). The commission, therefore, was bound to apply the subdivision regulation applicable to the situation presented by the defendant’s application.
Apart from that problem, which is fatal to the defendant’s position, the defendant is precluded for a related reason from challenging the validity of the subdivision regulation in this proceeding. By applying for subdivision approval and, thereby, seeking relief under the
Because these related grounds are dispositive of the defendant’s claim, we need not discuss other grounds for distinguishing Cristofaro II.
Ill
The defendant next claims that the trial court, upon determining that the commission acted improperly, should have remanded the case to the commission with direction to apply the subdivision regulations rather than simply reversing the commission’s granting of the application. Although the defendant does not make clear the reason for such remand, the defendant appears to argue that the commission could either apply the subdivision regulation, thereby enabling the defendant to appeal, or clarify why it did not previously apply an invalid regulation. The defendant also suggests that it would have the opportunity on remand to seek a waiver of the requirement that it apply for a waiver of the subdivision regulations. We disagree.
No proper purpose would be served by a remand to the commission. Once the trial court determined that the commission had acted improperly, the only appropriate remedy was to sustain the appeal. Thorne v. Zoning Commission, 178 Conn. 198, 206, 423 A.2d 861 (1979); Bogue v. Zoning Board of Appeals, supra, 165 Conn. 753-54. The defendant’s failure to apply for a waiver of the subdivision requirement could not be remedied on remand and, for the reasons discussed in
IV
The defendant claims finally that the trial court improperly excluded the supplemental testimony of the West Haven city planner, Jim Hill. The defendant argues that Hill could have explained that “the Subdivision Regulation was of no effect as a regulation of the use of land, a matter within the province of only the zoning authority.” The defendant’s argument is premised on the applicability of General Statutes § 8-8 (k), which provides in pertinent part that the court “shall allow any party to introduce evidence in addition to the contents of the record if . . . (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.” Under the statute, Hill’s testimony was admissible only if it was essential to the equitable disposition of the appeal. Tarasovic v. Zoning Commission, 147 Conn. 65, 70, 157 A.2d 103 (1959). That question is within the sound discretion of the court. Id.; Swensson v. Planning & Zoning Commission, 23 Conn. App. 75, 80, 579 A.2d 113 (1990).
In this case, the trial court duly considered the offer of Hill’s testimony, stating in its articulation that Hill had “ample opportunity to present his views, his arguments and his interpretations at the hearing.” On the basis of this record, we cannot conclude that the trial court abused its discretion in refusing to allow Hill to testify.
The judgment is affirmed.
In this opinion the other judges concurred.
Other defendants in this action include the named defendant and the West Haven town clerk, neither of whom are parties to this appeal. The word defendant as used in this opinion refers to Minor Farm Limited Partnership only.
The plaintiffs John A. Samperi, Carol Samperi, William Johnson, Hazel Johnson and Edward Nyeek, own property abutting that of the defendant.
West Haven planning and zoning regulations, art. Ill, c. 3, §§ 23-3.1 and 23-3.3.
Article XI of the West Haven planning and zoning regulations is divided into six chapters. Chapter 4, § 114-3, Subdivision Design and Requirements, states: “All lots shall be not less than 100 feet along the front and shall contain at least 12,000 square feet. Wherever possible side lot lines shall be perpendicular to straight street lines or radial to curving street lines. All lots shall front on streets shown on final plan.”
This section sets forth the procedures for subdivision approval.
Article XI, chapter 5, of the West Haven planning and zoning regulation provides: “The Planning and Zoning Commission may waive any requirement and/or standard contained in this Article if it deems such action essential in view of unusual topographical conditions or other special circumstances, provided that any variance granted does not conflict with the general purpose and intent of these regulations. To secure such variance, the applicant shall make written request to the commission explaining fully the reasons therefore and submit same with the preliminary plan. Action by the Commis
This court granted the defendant’s petition for certification to appeal.
In what manner the subdivision approval should be affirmed, according to the defendant, is unclear. In its brief, the defendant contends variously that we should reverse the judgment of the trial court, dismiss the judgment of the trial court, and remand the case to the commission for reconsideration.
If we were to construe the claim to be that the present appeal to this court is moot, the remedy would be dismissal of the case, without vacating the trial court’s judgment. Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 272, 659 A.2d 148 (1995). That result would clearly be detrimental to the defendant. Although it is procedurally irregular to determine whether the appeal to the trial court was moot, we note that a challenge to the court’s subject, matter jurisdiction may be made at any time. Goodson v. State, 232 Conn. 175, 179, 653 A.2d 177 (1995), citing Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987).
The plaintiffs contend that the amended regulations were declared invalid by a Superior Court judge in Jimmies, Inc. v. Planning & Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV92-0331249-S (March 29, 1994) (11 Conn. L. Rptr. 179), a decision that was not appealed. The defendant contends that Jimmies, Inc. “does not in toto invalidate the regulations, but rather invalidates the zone boundaries proposed by the new regulations, and not the limitations on lot size and frontage.” Because we decide the mootness issue on other grounds, we need not discuss the effect of the decision in Jimmies, Inc.
We note that the commission chair indicated at the executive session following the hearing that “we have been told by the corporation counsel and our planner that this proposal does meet subdivision regulations.” This remark would seem to indicate that the commission, rather than ignoring the subdivision regulations or considering them invalid, as the defendant claims was the case, misunderstood or was misinformed about the requirements.
See footnote 6.
The first Cristofaro decision, Cristofaro v. Planning & Zoning Commission, 11 Conn. App. 260, 527 A.2d 255, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987), was an appeal from the dismissal of a zoning appeal brought by the unsuccessful subdivision applicant. We affirmed the Superior Court’s dismissal on procedural grounds, concluding that the plaintiff should have brought a declaratory judgment action, rather than a zoning appeal, to test the validity of the zoning regulation. Id., 262.
The Supreme Court noted that the functions of zoning authorities and planning commissions are “ ‘separate yet related,’ even if the two have the same members.” Cristofaro II, supra, 217 Conn. 106, quoting Purtill v. Town Plan & Zoning Commission, 146 Conn. 570, 572, 153 A.2d 441 (1959).
The planning commission’s minimum lot size requirement applied only to subdivision lots not serviced by town water and sewers. Cristofaro II, supra, 217 Conn. 108. In response to the commission’s argument that the two regulations, therefore, did not directly conflict, the court determined that, where only a minimal part of the town has town supplied water and sewer services, “as a practical matter, the planning commission’s enactment . . . has repealed the . . . zoning designation and the two regulations directly conflict” Id.
We note, however, that the trial court discussed a number of other grounds on which Cristofaro II was distinguishable from the present case, including the fact that, unlike in Cristofaro II, the potentially conflicting regulations here are contained in a single, unified, comprehensive zoning resolution, which constituted a regulative comprehensive plan of development containing a “supremacy clause” to be used to resolve conflicts among the provisions.
The trial court noted that “the two conflicting regulatory provisions are both contained in one comprehensive planning and zoning resolution adopted by one combined planning and zoning commission. Additionally, the resolution contains a separate section entitled ‘Interpretation of Provisions’; art. I, c. 2, § 12.5; which provides: ‘Whenever any provision of this resolution and any other provisions of law, whether set forth in this resolution or in any other law, ordinance, or resolution of any kind, impose