Carr v. Woolwich

510 A.2d 1358, 7 Conn. App. 684, 1986 Conn. App. LEXIS 1022
CourtConnecticut Appellate Court
DecidedJune 17, 1986
Docket4019
StatusPublished
Cited by32 cases

This text of 510 A.2d 1358 (Carr v. Woolwich) 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
Carr v. Woolwich, 510 A.2d 1358, 7 Conn. App. 684, 1986 Conn. App. LEXIS 1022 (Colo. Ct. App. 1986).

Opinion

Borden, J.

This appeal involves the issue of whether the failure of the defendant planning and zoning com[685]*685mission to act upon the plaintiffs application for a zoning permit for a permitted use of his property within the time constraints set by General Statutes § 8-7d results in the automatic approval of the application. The trial court held that it did so result. We find no error.

The facts are not in dispute. On October 11, 1983, the plaintiff filed with the defendant Bridgewater planning and zoning commission an application for a zoning permit pursuant to § 2.2.3 of the Bridgewater zoning regulations, together with a site development plan, for the construction of a sixty unit hotel on his property located in a commercial C zone. The regulations provide that in a commercial C zone the uses “shall conform to and continue to observe” certain standards and criteria regarding such matters as air contaminants, sound levels, vermin control, waste disposal, fire control, storage of certain material and off-street parking. The regulations also provide in relevant part that “[a] Site Development Plan shall be submitted in four copies for [the commission’s] approval, which Site Plan shall show all applicable data required.” A hotel is a permitted use in a commercial C zone, subject, however, “to conformance with the [relevant provisions] above.” The plaintiff’s application to the commission was accompanied by a detailed site development plan and by a two page document. The application, the site development plan and the accompanying two page document purported to indicate the proposed hotel’s compliance with the applicable zoning regulations.

The commission considered the plaintiff’s application at its regularly scheduled meeting on December 7, 1983, and voted to return the plaintiff’s application and accompanying documents to him. On January 4,1984, the plaintiff appealed to the Bridgewater zoning board of appeals, claiming that the commission’s action in returning his application to him was improper. On [686]*686March 19,1984, the board directed the commission to process the plaintiffs application and site development plan. At its regularly scheduled April 14, 1984 meeting, the commission noted its receipt of the board’s decision, but nonetheless failed to take any further action on the plaintiff’s application. It still has not done so.

The plaintiff brought this mandamus action against the named defendant, who is the chairman of the commission, and against the commission itself, claiming that, pursuant to General Statutes §§ 8-7d (b)1 and 8-3 (g),2 he was entitled to a certificate of approval of his application, site development plans and maps submitted on October 11,1983. The trial court held that, pursuant to the provisions of General Statutes §§ 8-7d (b) and 8-3 (g), the plaintiff was entitled to the mandamus order he sought. It also held that the failure of the plaintiff to submit, with his application, the town sanitarian’s written approval of the septic system did not render his application incomplete so as to deny him the mandamus.3 This appeal followed.

[687]*687The defendants argue that the court erred because (1) the plaintiff did not establish that he complied with the various requirements established pursuant to the governing zoning regulations, (2) there is no time requirement in the general statutes or the zoning regulations for approval of a zoning permit, as opposed to approval of a site plan, and they emphasize that the plaintiffs application was for a zoning permit and not for site plan approval, and (3) the absence of the town sanitarian’s written approval of the septic system rendered the plaintiff’s application incomplete. We disagree.

I

We first consider the defendants’ argument that the General Statutes contain no requirement that a zoning commission act within any specified time limits on an application for a zoning permit, as opposed to an application for approval of a site plan. 4 Because this argument effectively rests upon the broad assumption that the absence of a specific provision in the General Statutes governing time limitations upon a zoning commission’s duty to act on an application for a zoning permit necessarily requires the conclusion that the legislature specifically intended not to limit such actions, we must carefully analyze the statutory scheme to determine the intent of the legislature. In doing so, we look both to the legislative history of General Statutes § 8-7 and related provisions, which provide time limitations in most planning and zoning situations, and to the judicial gloss upon that legislation.

[688]*688Prior to 1977, General Statutes § 8-7, which governs appeals to zoning boards of appeals, provided that “[s]aid board shall fix a reasonable time for the hearing of any appeal and . . . shall decide such appeal within sixty days after the hearing.” General Statutes (Rev. to 1966) § 8-7. In Donohue v. Zoning Board of Appeals, 155 Conn. 550, 235 A.2d 643 (1967), the plaintiffs sought to invalidate a decision of the zoning board of appeals on the ground that it had been rendered beyond the sixty day time period and thus was void. The Supreme Court held, however, that because the “statute contains nothing which expressly invalidates a belated decision or which inferentially makes compliance therewith a condition precedent,” the time period was “not of the essence of the thing to be accomplished” and was “[merely] directory and not mandatory.” Id., 554.

In 1968, the year after Donohue was decided, the Supreme Court decided Finn v. Planning & Zoning Commission, 156 Conn. 540, 244 A.2d 391 (1968). There the court held that, in the context of an application for a subdivision approval, the language of General Statutes § 8-26 requiring commission action within sixty days after submission and providing that the “ ‘failure of the commission to act thereon shall be considered as an approval’... was to ensure prompt and expeditious action on subdivision applications for the protection of the subdivider . . . [and that the] language of the statute is mandatory.” Id., 544. After Finn, therefore, the state of the law was that the statutory time period governing appeals to zoning boards of appeal was directory; Donohue v. Zoning Board of Appeals, supra; whereas, the statutory time period for applications for subdivision approval was mandatory. Finn v. Planning & Zoning Commission, supra. There was no definitive statement regarding the time period governing other land use or planning applications, such as the [689]*689application in the present case for a zoning permit. Subsequent to Donohue, the legislature, in 1971, amended General Statutes § 8-7 to provide that the board hear the appeal “within sixty-five days after receipt of the notice of appeal,” and that the board “decide such appeal within sixty-five days after the hearing.” Public Acts 1971, No. 71-862, § 4.

In 1977, the legislature enacted Public Acts 1977, No. 77-450 (the 1977 act). Section 3 of the 1977 act5 amended the language which had been held in Donohue

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Bluebook (online)
510 A.2d 1358, 7 Conn. App. 684, 1986 Conn. App. LEXIS 1022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carr-v-woolwich-connappct-1986.