Merlo v. Planning & Zoning Commission

495 A.2d 268, 196 Conn. 676, 1985 Conn. LEXIS 833
CourtSupreme Court of Connecticut
DecidedJuly 16, 1985
Docket12524
StatusPublished
Cited by30 cases

This text of 495 A.2d 268 (Merlo v. Planning & Zoning Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Merlo v. Planning & Zoning Commission, 495 A.2d 268, 196 Conn. 676, 1985 Conn. LEXIS 833 (Colo. 1985).

Opinions

Shea, J.

In this mandamus action the plaintiff sought an order that the defendant commission issue a certificate of approval of a subdivision plan she had submitted upon which a public hearing had been held by the commission. The ground relied upon by the plaintiff in her complaint was that the commission had failed to “approve, modify and approve, or disapprove” her subdivision plan, as required by General Statutes § 8-26,1 “within the period of time permitted under sec[678]*678tion 8-26d,” 2 which provides that “[a]ll decisions on such matters shall be rendered within sixty-five days after completion of such hearing.” The trial court, Hon. Joseph E. Klau, state referee, concluded that the commission had disapproved the subdivision plan within the time allowed and rendered judgment for the defendant. On appeal by the plaintiff, the Appellate Court, Testo, Hull and Borden, Js., reversed the judgment of the trial court and ordered the defendant to certify its approval of the subdivision plan. Merlo v. Planning & Zoning Commission, 1 Conn. App. 621, 474 A.2d 477 (1984). Pursuant to General Statutes § 51-1971 the defendant petitioned this court to certify the case for our review, and the petition was granted. We reverse the judgment of the Appellate Court and effectively reinstate the judgment of the trial court.

On November 15, 1977, the plaintiff applied to the defendant planning and zoning commission of Wethersfield for approval of a forty-two lot subdivision of her land located on Wells Road and Crest Street in that town. A public hearing on the application was held on January 3,1978. The parties have stipulated that valid extensions of the statutory period for action on the subdivision plan, as requested by the plaintiff, were granted by the commission until July 18,1978. Within [679]*679this period, on June 22, 1978, a regularly scheduled meeting of the commission was held at which the plaintiffs subdivision plan was considered. At this meeting a motion was made and seconded that the plan be approved subject to three “stipulations.” During the ensuing discussion several additional stipulations were proposed as amendments to the motion on the floor, but these were defeated. The original movant, as well as the commissioner who had seconded that proposal, accepted two additional stipulations for inclusion in their motion for approval of the subdivision. After some further debate the amended motion was disapproved by a vote of five to four. The minutes of the meeting recite that “the motion, with stipulations, was DISAPPROVED.” The commission clerk, in accordance with General Statutes § 8-26, on July 28,1978, published a legal notice of the decision on the application as follows: “motion to approve FAILED TO CARRY: Therefore this application was DENIED.” The commission took no further action on the plaintiff’s application.

The plaintiff, on August 8, 1978, made demand on the commission for a certificate of subdivision approval, claiming that because the commission had failed to “approve, modify and approve, or disapprove” her application as required by § 8-26, the subdivision plan had been automatically approved as the statute provided. The commission on August 15,1978, denied this request, maintaining that it had disapproved the application on June 22, 1978. Almost two years later, the plaintiff by a complaint dated July 31,1980, commenced this action of mandamus. At the same time she filed an administrative appeal from the commission’s August 15 decision alleging, in the first count, the refusal of the board to issue the requested certificate of subdivision approval and, in the second count, that the commission had acted arbitrarily and illegally by failing to take the requisite statutory action within the [680]*680time prescribed and by exceeding its authority in not recognizing that the plan complied with the subdivision regulations. The administrative appeal is still pending in the trial court.

I

The defendant commission has raised in this court, as well as in the Appellate Court, a jurisdictional issue concerning the propriety of mandamus as a remedy where there is a statutory appeal available, such as that pending, in which a plaintiff includes as one ground for relief essentially the same claim presented in the mandamus action.3 The commission relies on the principle that “when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.” Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); see Laurel Park, Inc. v. Pac, 194 Conn. 677, 685, 485 A.2d 1272 (1984). With respect to the extraordinary writ of mandamus, it is well established that an essential prerequisite for issuance of the writ is the absence of any other sufficient remedy. Juliano v. Farrell, 196 Conn. 283, 286, 492 A.2d 187 (1985); Kays, Inc. v. Board of Tax Review, 170 Conn. 477, 480, 365 A.2d 1207 (1976); Milford Board of Education Assn. v. Board of Education, 167 Conn. 513, 519, 356 A.2d 109 (1975).

As the Appellate Court noted, this court in several cases has implicitly approved mandamus as an appro[681]*681priate remedy where it is claimed that a subdivision plan has been automatically approved pursuant to § 8-26 because of the failure of a planning commission to perform its statutory duty within the prescribed time. M & L Homes, Inc. v. Zoning & Planning Commission, 187 Conn. 232, 445 A.2d 591 (1982); Gervasi v. Town Plan & Zoning Commission, 184 Conn. 450, 440 A.2d 163 (1981); Viking Construction Co. v. Planning Commission, 181 Conn. 243, 435 A.2d 29 (1980). In Vartuli v. Sotire, 192 Conn. 353, 366, 472 A.2d 336 (1984), we held that the pendency of a zoning appeal, “which could do no more than secure approval of the coastal site plan, which already had been approved by operation of law,” did not preclude resort to the more expeditious4 and effective remedy of mandamus in order to “vindicate the plaintiffs’ right to the immediate issuance of a building permit.” The situation is similar in this case, where the plaintiff claims that her subdivision plan has been approved pursuant to § 8-26 by virtue of the inaction of the commission.

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Bluebook (online)
495 A.2d 268, 196 Conn. 676, 1985 Conn. LEXIS 833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merlo-v-planning-zoning-commission-conn-1985.