Augeri v. Planning & Zoning Commission

586 A.2d 635, 24 Conn. App. 172, 1991 Conn. App. LEXIS 54
CourtConnecticut Appellate Court
DecidedFebruary 26, 1991
Docket8869
StatusPublished
Cited by24 cases

This text of 586 A.2d 635 (Augeri v. Planning & Zoning Commission) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Augeri v. Planning & Zoning Commission, 586 A.2d 635, 24 Conn. App. 172, 1991 Conn. App. LEXIS 54 (Colo. Ct. App. 1991).

Opinion

Landau, J.

The parties previously appeared before this court in Augeri v. Planning & Zoning Commission, 18 Conn. App. 722, 560 A.2d 985 (1989). That case determined that the plaintiffs motion to open should not have been denied and the case was remanded to the trial court to consider whether the trial court originally should have dismissed the appeal from the planning and zoning commission (commission) for the plaintiffs failure to attach the sheriffs return to the appeal documents. On remand, the trial court found that the plaintiffs appeal should not have been dismissed. Thereafter, the trial court held a hearing on the plaintiff’s petition to open, filed on August 30,1989, and based on Public Acts 1988, No. 88-79.1 The trial court [174]*174denied the plaintiff’s petition finding that the defendant Thaddeus Bysiewicz2 had obtained approval for a five lot subdivision conditioned on his providing public water and sewer service to each lot. On the basis of Bysiewicz’ expenditure of “thousands of dollars in connection with the construction and supplying of water and sewer service” to his approved subdivision, the court determined that opening the original judgment on the plaintiff’s appeal from the commission’s approval would substantially infringe upon Bysiewicz’ property rights in contravention of Public Acts 1988, No. 88-79.

The plaintiff appeals claiming that the trial court (1) misinterpreted the phrase “a substantial infringement of property rights” in denying the plaintiff’s petition to open under § 3 (b) of No. 88-79 of the 1988 Public Acts, (2) failed to explain, in its memorandum of decision, the basis of its finding that Bysiewicz’ expenditures were “substantial,” (3) improperly held that the applicable time period in which Bysiewicz could have relied on the prior dismissal of this action was between April 7 and June 10,1988, and (4) improperly granted Bysiewicz’ motion for a protective order prohibiting the plaintiff from deposing him. We disagree with the plaintiff and affirm the decision of the trial court.

I

This action arises out of Public Acts 1988, No. 88-79, which amended General Statutes (Rev. to 1987) [175]*175§ 8-8 (b)3 in response to the line of cases stemming from Simko v. Zoning Board of Appeals (Simko I), 205 Conn. 413, 533 A.2d 879 (1987). Section 3 (b) of Public Act No. 88-79 specifically addressed and redressed those appeals taken on or after October 1, 1985, and prior to December 1, 1987, that failed to be tried on their merits due to dismissals for failure to name the town clerk as a party to the appeal. This act allowed parties in those cases ninety days after the effective date of the act to open the judgments of dismissal and further provided, in pertinent part, that the party petitioning to reopen an appeal “shall have the right to have such reopened unless the court finds that (1) there has been a substantial infringement of property rights . . . .” The statute does not define the phrase a substantial infringement of property rights.

The plaintiff asserts that this phrase is unambiguous and therefore urges us to adopt a constitutional definition. The defendants, however, prompt this court to find that the meaning of this phrase is ambiguous and unclear and thus requires us to consider the legislative intent behind the act. We agree with the defendants.

“ ‘Although it is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary; Manchester v. Manchester Police Union, [176]*1763 Conn. App. 1, 6, 484 A.2d 455 (1984); that axiom only applies in full force “[wjhere . . . the language of a statute is . . . absolutely clear” on its face and where no ambiguity is disclosed by reference to its background. (Emphasis in original.) Anderson v. Ludgin, 175 Conn. 545, 552-54, 400 A.2d 712 (1978).’ ” Dugas v. Lumbermens Mutual Casualty Co., 22 Conn. App. 27, 33, 576 A.2d 165 (1990). “ ‘A word or statute is ambiguous when capable of being interpreted by reasonably well-informed persons in either of two or more senses.’ ” Federal Aviation Administration v. Administrator, 196 Conn. 546, 554, 494 A.2d 564 (1985) (Healey, J., dissenting), citing Vernon v. Waukesha County, 99 Wis. 2d 472, 477, 299 N.W.2d 593 (1980), aff’d, 102 Wis. 2d 686, 307 N.W.2d 227 (1981); 73 Am. Jur. 2d, Statutes § 258 (1974). The phrase “a substantial infringement of property rights” is susceptible to two different meanings. One is the constitutional definition describing a situation in which a property’s value is destroyed or nullified or by which the owner’s right to its use or enjoyment is to a substantial degree abridged or destroyed. This definition historically applies in situations involving state action. There is also the alternative possibility that the words mean that there must have been an expenditure of a significant sum of money spent in reliance on Simko I.

Because this phrase is ambiguous, we must turn for guidance to the legislative history and the purpose the statute is to serve. State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989). The legislative history reveals that both the House and the Senate held discussions on the meaning of “a substantial infringement of property rights . . . .” In these discussions, a substantial infringement of property rights was described as occurring when subsequent action that involved the investing of “significant sums of money” had been taken in good faith reliance on the Simko I decision. 31 S. Proc., [177]*177Pt. 4,1988 Sess., p. 1129, remarks of Senator Steven Spellman. This review also reveals that the existence of such an infringement is to be determined on a case by case basis by the court; 31 H.R. Proc., Pt. 4, 1988 Sess., p. 1354, remarks of Representative Richard D. Tulisano; and that this legislation specifically sought to address “an economic detriment.” 31 H.R. Proc., Pt. 4, 1988 Sess., p. 1355, remarks of Representative William J. Cibes, Jr.

Therefore, the existence of “a substantial infringement of property rights” is to be established by the court on a case by case basis with the court evaluating the equities of each case in light of the parties’ reliance on the Simko I decision. The trial court, upon finding that the defendant had spent thousands of dollars in reliance on the approval of the subdivision, properly concluded that the reopening of the plaintiff’s appeal would constitute “a substantial infringement” of Bysiewicz’ property rights.

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Bluebook (online)
586 A.2d 635, 24 Conn. App. 172, 1991 Conn. App. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/augeri-v-planning-zoning-commission-connappct-1991.