Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals

606 A.2d 725, 27 Conn. App. 412, 1992 Conn. App. LEXIS 169
CourtConnecticut Appellate Court
DecidedApril 21, 1992
Docket10219
StatusPublished
Cited by15 cases

This text of 606 A.2d 725 (Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals) 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
Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 606 A.2d 725, 27 Conn. App. 412, 1992 Conn. App. LEXIS 169 (Colo. Ct. App. 1992).

Opinion

Freedman, J.

This is an appeal by the defendants from a decision of the trial court granting the plaintiffs a writ of mandamus against the defendant zoning board of appeals of Colchester (board)1 ordering the board to issue a certificate approving the plaintiffs’2 application for site plan approval for the construction of a bituminous concrete (asphalt) plant on the plaintiffs’ property.

The facts in this matter were stipulated to by the parties and the case was heard by the trial court on the basis of the stipulation. For purposes of this appeal, the pertinent facts are as follows. On August 3, 1988, at a regular meeting of the Colchester planning and zoning commission (commission), the commission interpreted the town’s zoning regulations to allow an asphalt plant as a permitted use on the land involved under § 12.2-12 of the Colchester zoning regulations. On June 5, 1989, the plaintiffs submitted an application to the commission for a Class 2 site plan approval for the construction of an asphalt plant on their property. On August 2,1989, the commission held a public hearing on the application. On August 10, 1989, the commission denied the application. Although not stipulated to by the parties, the record reveals that the reasons for the denial were (1) the plaintiffs’ failure to comply with [414]*414a regulation requiring department of environmental protection approval prior to submitting the plan and (2) their failure to present sufficient information about traffic volume and controls, the protection of groundwater, and the protection of neighboring property values.

On September 1, 1989, the plaintiffs filed an application with the board, appealing from the denial of its site plan application by the commission. Shortly after the appeal was filed with the board, the commission determined at its meeting on September 6, 1989, that asphalt plants “were no longer allowed in Colchester.” No notice of the commission’s intention to reconsider its prior interpretation of the regulations, namely, that such plants were a permitted industrial use, was given to either the plaintiffs or the public prior to the meeting, nor was its outcome promulgated by publication. The reinterpretation occurred more than one year after the commission had originally determined that an asphalt plant was a permitted use in an industrial zone.

On October 24,1989, the board notified the plaintiffs that a public hearing would be held on the appeal application on November 9, 1989, and duly advertised the public hearing in a local newspaper. On November 3, 1989, the board notified the plaintiffs that the public hearing had been canceled. Although not stipulated to by the parties, the letter sent by the board to the plaintiffs and contained in the record stated that the board felt that the commission’s action of September 6,1989, had left it with no jurisdiction to act on the appeal. The board did not hold a public hearing on the plaintiffs’ application, nor did it render a decision on that application. The plaintiffs sought a writ of mandamus to compel the board to issue a certificate approving their site plan application and be ordered to sustain the appeal filed with it by the plaintiffs.

[415]*415The trial court granted the plaintiffs the relief requested. This appeal follows.

There are two questions that must be addressed in this appeal. First, did the board have jurisdiction to hear the plaintiffs’ appeal to it from the denial of their application to the planning and zoning commission for site plan approval, and, second, if it did have such jurisdiction, did the board’s failure to hold a hearing within the time limits set forth in General Statutes § 8-7d result in the automatic approval of the subject site plan. We answer both questions in the affirmative.

In the recent case of Castellon v. Board of Zoning Appeals, 221 Conn. 374, 603 A.2d 1168 (1992), our Supreme Court distinguished between situations in which the local zoning regulations provide for an appeal to the zoning board of appeals from the action of a zoning commission on an application for site plan approval and situations in which the regulations do not so provide, leaving the jurisdiction of the zoning board of appeals to be governed by the general statutes. In the former, an appeal must first go to the zoning board of appeals and, in the latter, an appeal is taken directly to the Superior Court.

In Castellon, the Supreme Court analyzed its prior decision in Conto v. Zoning Commission, 186 Conn. 106, 439 A.2d 441 (1982). As part of its analysis, the court stated that they had concluded in Conto3 (1) that “the ‘town zoning regulations could legally provide that appeals from enforcement decisions of a town zoning commission must, in the first instance, be taken to the [416]*416town’s zoning board of appeals’ Castellon v. Board of Zoning Appeals, 378; and (2) “that neither General Statutes § 8-9 nor General Statutes § 8-10, nor the two sections taken together, permit an aggrieved party-direct access to the court when the local regulations provide for an intermediate appellate step between the commission and the court.”4 Id., 380.

In Castellón, which involved an application for site approval as in the present case, the local zoning regulations did not provide for review of the zoning commission’s decision by the zoning board of appeals. Our Supreme Court concluded that “there was no further administrative remedy available from the board for the plaintiffs to exhaust before resorting to an appeal pursuant to General Statutes § 8-9.” Id., 382. It is therefore clear from Castellón that the question of whether the board in the present matter had jurisdiction to hear the plaintiff’s appeal from the denial of its application to the commission for site plan approval is the “function solely of the particular regulations at issue.” Id., 383.

Section 17.1 of the Colchester zoning regulations provides that “[a]ny person may appeal to the Zoning Board of Appeals when it is alleged that there is an error in any order, requirement, or decision made by the Commission or the Zoning Enforcement Officer related to the enforcement of these regulations.” [417]*417(Emphasis added.) The term “enforcement” has never been directly defined by our courts in this context. Zoning regulations, however, may be “enforced by a refusal of a building or occupancy permit where the construction or use of the land in question is not in compliance with the pertinent regulations.” 82 Am. Jur. 2d, Zoning § 242; Corsino v. Grover, 148 Conn. 299, 170 A.2d 267 (1961). Similarly, the refusal by the commission to approve a site plan enforces the existing regulations and is therefore “enforcement” as that term is used in § 17.1 of the Colchester zoning regulations. We hold therefore that the board did have jurisdiction to hear the plaintiffs’ appeal under § 17.1 of the Colchester zoning regulations.

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Bluebook (online)
606 A.2d 725, 27 Conn. App. 412, 1992 Conn. App. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leo-fedus-sons-construction-co-v-zoning-board-of-appeals-connappct-1992.