Cole v. Planning & Zoning Commission

671 A.2d 844, 40 Conn. App. 501, 1996 Conn. App. LEXIS 106
CourtConnecticut Appellate Court
DecidedMarch 5, 1996
Docket13714
StatusPublished
Cited by32 cases

This text of 671 A.2d 844 (Cole 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
Cole v. Planning & Zoning Commission, 671 A.2d 844, 40 Conn. App. 501, 1996 Conn. App. LEXIS 106 (Colo. Ct. App. 1996).

Opinion

SCHALLER, J.

The plaintiffs Toby deElye Cole, Sally deElye Cole and Lois Redington appeal from the judgment of the trial court affirming the defendant Cornwall planning and zoning commission’s (commission) passage of an amendment to its zoning regulations. The plaintiffs1 claim that the trial court improperly (1) concluded that the commission may enact a regulation that authorizes a special use permit that expires after a two year period, (2) concluded that the commission’s amendment to its regulations does not violate a Torring-ton area health district regulation, (3) considered evidence obtained outside of public hearings, and (4) concluded that the amendment was in accord with a [503]*503comprehensive plan and reasonably related to the police power purposes enumerated in General Statutes § 8-2.2 We affirm the judgment of the trial court.

The trial court found the following facts. On October 27,1989, Lawrence Stevens and Victoria Stevens applied to the commission for a permit to construct a storage shed on property owned by Victoria Stevens in Cornwall. The commission learned, in considering the application, that the shed w ould be used to house a sawmill, and it would replace a sawmill already being operated on the premises by Lawrence Stevens. At the time of the application, Cornwall zoning regulations permitted the operation of permanent sawmills in residential districts by special exception only if a 500 foot setback requirement could be met. Because the existing sawmill did not satisfy the 500 foot setback requirement, Lawrence Stevens had to discontinue its use.

On October 11, 1990, and January 19, 1991, the commission held public hearings on proposed amendments to its regulations. On February 11,1991, the commission amended article VIII of the Cornwall zoning regulations by adding new § 8.20.3 Section 8.20.5 (a) reduced the [504]*504setback requirement for permanent sawmills to 200 feet and classified permanent sawmills as a class C #83 (Forestry Activities) land use for the purpose of noise levels.4 Section 8.20.9 further provided that special permits required to operate sawmills “shall be valid for a two-year period and may be renewed for additional two-year periods.”5

Toby Cole, Sally Cole, Redington, Ilyana Adams and Esther Kenny appealed to the trial court from the commission’s decision to amend the Cornwall zoning regulations. The trial court dismissed the appeal on December 30,1991, on the ground that the plaintiffs had not established aggrievement. We reversed that judgment and remanded the case for a hearing on the merits. Cole v. Planning & Zoning Commission, 30 Conn. App. 511, [505]*505620 A.2d 1314 (1993). On November 22, 1993, the trial court held a hearing on the merits of the plaintiffs’ appeal, and on April 6, 1994, the trial court rendered judgment in favor of the commission. We certified the plaintiffs’ petition for appeal to this court.

I

The plaintiffs claim that the trial court improperly concluded that the commission may enact a zoning regulation that authorizes a special use permit that expires after a two year period.6 The plaintiffs argue that the provision authorizing a limited special use permit is invalid because an owner of property has a vested right to put that property to a use allowed under a special exception if the regulatory requirements for issuance of the permit are satisfied. The plaintiffs further argue that because the special use permit provision is an essential part of the zoning regulation, it is not sever-able. The plaintiffs contend, therefore, that the entire regulation is invalid.

We first consider the commission’s argument that this issue is moot because the commission repealed the two year limitation provision after the trial court decision. “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . Grace Community Church v. Bethel, 30 Conn. App. 765, 769, 622 A.2d 591, cert. denied, 226 Conn. 903, 625 A.2d 1375, cert. denied, 510 U.S. 944, 114 S. Ct. 383, 126 L. Ed. 2d 332 (1993). Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits. . . . Because [506]*506this court has no jurisdiction to give advisory opinions, no appeal can be decided on its merits in the absence of an actual controversy for which judicial relief can be granted. . . .” (Citation omitted; internal quotation marks omitted.) Bakerville Lumber & Construction Co. v. Planning & Zoning Commission, 38 Conn. App. 212, 213, 659 A.2d 758 (1995).

Both sides noted in their briefs that, on August 8, 1994, the commission further amended its regulations and removed the provision requiring special use permits for permanent sawmills to be renewed after a two year period.7 The plaintiffs argue that pursuant to General Statutes § 8-2h (a), the removal of the special use permit provision from the regulation does not render this issue moot. We disagree.

Section 8-2h (a) provides in pertinent part that a zoning “application . . . which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations . . . taking effect after the filing of such application.” Nothing in the record indicates to this court that an application for a special use permit under Cornwall zoning regulation § 8.20 as originally enacted has been made.8 The merits of a permit application with the commission are, therefore, not at issue. Instead, the plaintiffs’ challenge con-[507]*507cems only the validity of the enactment of a zoning regulation by the commission. The plaintiffs’ challenge of the special use permit provision, therefore, is not controlled by § 8-2h (a), and the regulation as amended on August 9, 1994 controls. “ ‘[T]he repeal of an offending law or regulation or the cessation of a challenged activity [renders] an action to enjoin its enforcement moot ....’” St. Pierre v. Solnit, 233 Conn. 398, 401, 658 A.2d 977 (1995); see also Rosnick v. Zoning Commission, 172 Conn. 306, 309, 374 A.2d 245 (1977). We dismiss this issue as moot.9

II

The plaintiffs next claim that the trial court improperly concluded that the designation of sawmills as a class C #83 (Forestry Activities)10 land use by the commission does not violate the health district

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Bluebook (online)
671 A.2d 844, 40 Conn. App. 501, 1996 Conn. App. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-planning-zoning-commission-connappct-1996.