Miles v. Foley

LAVERY, J.,

dissenting. I respectfully disagree with the majority’s conclusion that the defendant commission’s refusal to process and reach the merits of the plaintiffs subdivision application constituted an action of “disapproval” within the meaning of General Statutes § 8-26.

On May 20, 1996, the plaintiffs agent delivered a subdivision application to the commission. The minutes of the commission’s May 21, 1996 meeting state: “The Chairman noted that an attempt had been made to file an application with the Commission for subdivision of the Miles property off Garibaldi Lane, which land had recently been the subject of a hearing before the Environmental Commission, and that their decision had been appealed to the Superior Court. On motion of [Robert] McKay, seconded by [Albert] Kolff, it was 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). The Commission does not wish to be placed in the situation reflected in Arway v. Bloom, [29 Conn. App. 469, 615 A.2d 1075 (1992), appeal dismissed, 227 Conn. 799, 633 A.2d 281 (1993)]. The Town Planner was instructed to return the file to the applicant.” (Emphasis added.) The minutes of this meeting disclose that the commission refused to process and reach the merits of the plaintiffs application.

Section 8-26 explicitly provides that, when the commission receives a subdivision application, it must take one of three specific actions within the statutory time period. “The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith, including existing subdivisions or resubdivisions made in violation of this section, within the period of time permitted under section 8-26d. . . . 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. ...” (Emphasis added.) General Statutes § 8-26. Our Supreme Court has stated that “the statute merely provides for the commission to ‘approve, modify and approve, or disapprove’ a subdivision application.” Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 592, 409 A.2d 1029 (1979). The failure of the commission to take one of the actions set forth in § 8-26 within the statutory time period will result in an automatic approval of the application. Merlo v. Planning & Zoning Commission, 196 Conn. 676, 682, 495 A.2d 268 (1985).

It is undisputed that the commission neither approved nor modified and approved the application. Relying on Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 592 A.2d 953 (1991), however, the majority contends that the commission’s refusal to process and reach the merits of the plaintiffs application constituted an action of “disapproval” within the meaning of § 8-26.1 respectfully submit that the majority’s reliance on Winchester Woods Associates is misplaced because, unlike the commission in Winchester Woods Associates, the commission in this case had no legitimate statutory basis to justify its decision to refuse to process the plaintiffs application.

In Winchester Woods Associates, the plaintiff filed an application with the commission in February, 1989, and, upon the commission’s denial of that application, the plaintiff appealed to the Superior Court. Id., 304-305. On May 31,1989, the plaintiff filed a second application, which was received by the commission on June 15, 1989, the day of its next regularly scheduled meeting. Id., 305. Relying on Public Acts 1977, No. 77-545, § 3,¹ which amended § 8-26, the commission concluded that § 8-26 prevented it from reviewing the plaintiffs second application while an appeal concerning the first application was pending in the Superior Court. Id., 308-309. Our Supreme Court held that this statutory provision authorized the commission to refuse to process an application that was the same or substantially the same as another application that the commission had acted on, which was pending appeal to the Superior Court. Id., 311-12.²

It is significant to note that, following the decision in Winchester Woods Associates, the legislature adopted No. 92-191 of the 1992 Public Acts, which amended § 8-26 and which provides: “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.” Public Act 92-191 eliminated the exception that was recognized in Winchester Woods Assoicates. The legislature’s adoption of Public Act 92-191 manifests an intention to limit the circumstances under which a planning commission can refuse to process and reach the merits of an application.

The decision in Winchester Woods Associates is consistent with our decision in Par Developers, Ltd. v. Planning & Zoning Commission, 37 Conn. App. 348, 655 A.2d 1164 (1995). In Par Developers, Ltd., § 4.7 of a town’s subdivision regulations provided that, if land in a proposed subdivision was located in a wetlands or watercourse area, a copy of the application must be filed with the wetlands commission. Id., 350. Section 4.7 further provided that “if such application shall not be filed with the [wetlands commission] as prescribed herein, the application shall be considered incomplete and the commission shall not proceed with further proceedings thereon until such copy of the application is received by the [wetlands commission].” (Internal quotation marks omitted.) Id., 350-51.³ The plaintiff did not file a copy of the subdivision application with the wetlands commission. Id., 351. The planning and zoning commission failed to act on the subdivision application within the statutory period, and the plaintiff sought a writ of mandamus to compel the commission to approve its application. Id., 350-51. The trial court denied the writ of mandamus and we affirmed the judgment of the trial court, concluding: “Section 4.7 of the . . . subdivision regulations prohibited the defendant from processing the application until a copy thereof had been filed with the wetlands commission. Where the effect of automatic approval would result in a questionable certificate of approval because another law is violated, the plaintiffs right to have the duty performed is far from clear. . . . We are not persuaded that the trial court should have overlooked § 4.7 and found that the plaintiff had a clear right to have the certificate of approval issued.” (Citations omitted.) Id., 354-55.

Although our decision in Coastal Suburban Builders, Inc. v. Planning & Zoning Commission, 2 Conn. App. 489, 479 A.2d 1239 (1984), examined whether a zoning commission’s failure to act in a timely manner on an application for a special exception resulted in an automatic approval of the application, it nonetheless provides useful guidance in this context. In Coastal Suburban Builders, Inc., the plaintiffs filed an application for a special exception to the zoning regulations. Id., 490. Pursuant to General Statutes § 8-3 (g), the plaintiff petitioned for a writ of mandamus to compel the commission to grant the special exception because the commission had failed to act within the time provided by the local zoning regulations and General Statutes § 8-7d (b). Id., 491. The trial court denied the writ of mandamus and we affirmed the judgment of the trial court, concluding: “The special exception which the plaintiffs sought was not allowed in an R-4 zone. If the exception had been granted, the [commission] would have clearly abused its discretion. We cannot compel the performance of an unlawful act.” Id., 493.

Winchester Woods Associates, Par Developers, Ltd., and Coastal Suburban Builders, Inc., collectively establish that when a planning commission either engages in conduct other than the three actions set forth in § 8-26 or fails to take any action within the statutory time period, it will result in an automatic approval of the application unless (1) a statute or regulation justifies the commission’s conduct or (2) granting a writ of mandamus would compel the performance of unlawful conduct.

An examination of the factors that the commission relied on in this case in refusing to process the plaintiffs application demonstrates that neither of these two limited exceptions applies in the present case. First, the commission refused to process the application because “if a zoning permit were requested upon approval of such a subdivision, it would be denied under § 60-3.12.A.(2).”⁴ Section 60-3.12.A(2) is irrelevant to the commission’s determination as to whether it could properly refuse to process a subdivision application. While the commission is a combined planning and zoning commission, the application was submitted to it in its capacity as a planning commission. The plaintiff did not submit an application to the zoning inspector for a zoning permit, which is when this provision applies. The regulation by its own terms applies only where a zoning permit is requested from the zoning inspector and the pending proceeding is either an application to the zoning board of appeals or another action relating to a previous request for a zoning permit. Accordingly, § 60-3.12.A. (2) did not authorize the commission to refuse to process the plaintiffs application.

Second, the commission refused to process the plaintiffs application because it “did not wish to be placed in the situation reflected in Arway v. Bloom, [supra, 29 Conn. App. 469].” The commission’s reliance on Arway is misplaced. In Arway, we observed that the “legislative history of Public Act 77-545 [which amended § 8-26] thus indicates that while the planning commission was expected to review a report of the wetlands commission prior to making its own decision, each agency was expected to make its own independent decision on the application before it, within the appropriate time limits allowed by statute. . . . There is nothing to indicate that the validity of the planning commission’s decision was intended to be contingent upon the ultimate validity of the wetlands decision.” (Citation omitted.) Id., 478. In Ventres v. Inland Wetlands & Watercourses Commission, 25 Conn. App. 572, 575, 595 A.2d 914, cert. denied, 220 Conn. 921, 597 A.2d 344 (1991), the plaintiff claimed that the planning commission had improperly denied approval of his subdivision application because, while the decision of the wetlands agency was pending appeal, the planning commission did not possess a final decision from the wetlands agency as required by § 8-26. In rejecting the plaintiffs claim, we concluded that “the wetlands agency’s final decision was contained in the report that the [planning] commission received and therefore satisfied the statute.” (Internal quotation marks omitted.) Id.

In the present case, the record discloses that the wetlands commission approved the plaintiffs wetlands application and granted a regulated activities permit. Although the decision of the wetlands commission was pending appeal to the Superior Court, Arway and Ventres establish that § 8-26 did not prohibit the commission from reaching the merits of the plaintiffs subdivision application despite the pending appeal. Accordingly, § 8-26 did not authorize the commission to refuse to process the plaintiffs application.

Because neither of the two factors the commission relied on legitimizes its refusal to process the plaintiffs application, § 8-26 required the commission either to approve, modify and approve, or disapprove the application. The commission’s failure to take one of the three specified actions within the statutory period resulted in an automatic approval of the plaintiffs application. Merlo v. Planning & Zoning Commission, supra, 196 Conn. 682; Carpenter v. Planning & Zoning Commission, supra, 176 Conn. 593.

Important policy considerations also militate in favor of this interpretation of § 8-26. In Finn v. Planning & Zoning Commission, 156 Conn. 540, 544, 244 A.2d 391 (1968), our Supreme Court stated that “[t]he obvious intention of the legislature in using [the automatic approval provision] was to ensure prompt and expeditious action on subdivision applications for the protection of the subdivider. The language of the statute is mandatory.” “Although there is no reported legislative history regarding the automatic approval provision of General Statutes § 8-26, the purpose of the provision is obvious: to deter . . . commissions from unduly delaying their consideration and resolution of applications for subdivision approval.” Koskoff v. Planning & Zoning Commission, 27 Conn. App. 443, 457, 607 A.2d 1146 (1992) (Heiman, J., dissenting), cert. granted, 222 Conn. 912, 608 A.2d 695 (1992) (appeal dismissed November 10, 1992).

The majority frustrates this objective by concluding that § 8-26 authorizes a commission to refuse to process an application regardless of whether such refusal is warranted, thereby eviscerating the two limited exceptions established by Winchester Woods Associates, Par Developers, Ltd., and Coastal Suburban Builders, Inc. In doing so, it has conferred upon planning and zoning commissions the discretion to place a moratorium on development while at the same time insulating themselves from the consequences of the automatic approval provision of § 8-26. I do not believe that § 8-26 authorizes a planning commission to decide when it wants to receive and process a subdivision application. See Viking Construction Co. v. Planning Commission, 181 Conn. 243, 247, 435 A.2d 29 (1980). If § 8-26 is to have the meaning the legislature expressed in clear and unambiguous language, then the commission had a clear duty to accept the application and to act on it as provided by statute.

Because the commission failed to take one of the three actions specified in § 8-26 within the statutory time period and neither of the established exceptions apply to this case, I would reverse the judgment of the trial court and remand the case with the direction that the trial court grant the plaintiffs writ of mandamus.

1 Public. Act 77-545, § 3, amended § 8-26 to include the provision that “[n]o planning commission shall be required to consider an application for approval of a subdivision plan while another application for subdivision of the same or subst antially the same parcel is pending before the commission. . . .” See Winchester Woods Associates v. Planning & Zoning Commission, supra, 219 Conn. 309.

2 Although the Supreme Court in Winchester Woods Associates held that § 8-26 authorized the commission to refuse to process an application that was the same or substantially the same as an application that was already pending on appeal to the Superior Court, it stated that the commission’s refusal to process the plaintiff’s second application constituted an abuse of discretion because the commission never determined whether the second application was the same or substantially the same as the first application. Winchester Woods Associates v. Planning & Zoning Commission, supra, 219 Conn. 311-12.

3 The court further observed: “Although the trial court based its decision on the local regulation, General Statutes § 8-26 also mandates that an application be filed with the wetlands commission and forbids a planning commission from rendering a decision until the wetlands commission has submitted a report with its final decision to the planning and zoning commission. General Statutes § 8-26 provides in relevant part: Tf 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. . . .’ ” Par Developers, Ltd. v. Planning & Zoning Commission, supra, 37 Conn. App. 351-52 n.5.

4 Section 60-3.12.A of the New Canaan regulations provides in relevant part: “Any application to the Zoning Inspector for 'a zoning permit made under Article III shall be void and of no effect if . . .

“(2) ... An appeal is pending before the Zoning Board of Appeals or any legal proceeding is pending before any court of competent jurisdiction or pending in any other form of dispute resolution relating to a zoning permit or on an application for a zoning permit on the same land, building, structure or use thereof as to which such application is being made . . . .”