Par Developers, Ltd. v. Planning & Zoning Commission

655 A.2d 1164, 37 Conn. App. 348, 1995 Conn. App. LEXIS 165
CourtConnecticut Appellate Court
DecidedMarch 28, 1995
Docket12935
StatusPublished
Cited by16 cases

This text of 655 A.2d 1164 (Par Developers, Ltd. 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
Par Developers, Ltd. v. Planning & Zoning Commission, 655 A.2d 1164, 37 Conn. App. 348, 1995 Conn. App. LEXIS 165 (Colo. Ct. App. 1995).

Opinion

O’Connell, J.

This is a mandamus action in which the plaintiff appeals from a judgment rendered in favor of the defendant. The plaintiff claims that the trial court improperly (1) determined that the plaintiff failed to establish a clear right to the relief requested, (2) determined that the plaintiff failed to submit a copy of the subdivision application to the inland wetlands and watercourses commission (wetlands commission), and (3) found that the defendant was not otherwise required by operation of law to issue a subdivision permit to the plaintiff.1 We affirm the judgment of the trial court.

The scenario leading to this appeal commenced with the plaintiff’s application for approval of its four lot subdivision on Bar Gate Trail in Killingworth. The appli[350]*350cation was officially received at the defendant’s November 19,1991 meeting. See General Statutes § 8-26d (c).2

When no public hearing is held, as in this case, a planning and zoning commission must make its decision within sixty-five days of the receipt of the application. The applicant may consent to an extension not to exceed an additional sixty-five days. General Statutes § 8-26d (b).3 In the present case, the plaintiff consented to a sixty-five day extension so that April 1, 1992, became the deadline. The defendant neither granted nor denied the application by April 1, 1992, but eventually denied it on November 17, 1992.

The plaintiff seeks this mandamus on the ground that its application should be deemed automatically approved pursuant to § 8-26d (b) because the defendant did not act on it by April 1, 1992.

If the land in a proposed subdivision is located in a wetlands or watercourse area, § 4.7 of the Killingworth subdivision regulations mandates the simultaneous filing of a copy of the subdivision application with the wetlands commission.4 The regulation states that “if such [351]*351application shall not be filed with the [wetlands commission] as prescribed herein, the application shall be considered incomplete and the commission shall not proceed with further proceedings thereon until such copy of the application is received by the [wetlands commission].” (Emphasis added.)

The plaintiff did not file a copy of the subdivision application with the wetlands commission. Instead, it filed a form entitled “Application to Conduct a Regulated Activity in Wetlands or Watercourses.” Despite the form’s title, the plaintiff indicated thereon that it was not seeking permission to conduct a regulated activity. Consequently, the wetlands commission returned the form and application fee.

The trial court found that in the context of § 4.7 the plaintiff’s claimed application to the wetlands commission was a nullity and thus the plaintiff had not complied with § 4.7. Accordingly, the trial court concluded that the plaintiff had not established a clear right to have the application granted and denied the mandamus.

The plaintiff’s first two claims are subsumed under the common issue of whether the plaintiff had submitted the required copy of the application to the wetlands commission so as to trigger the statutory time limits for automatic subdivision approval.5

[352]*352A writ of mandamus is available only if (1) the party applying for the writ has a clear legal right to have the duty performed, (2) the defendant has no discretion with respect to performance of that duty, and (3) the plaintiff has no adequate remedy at law. Golab v. New Britain, 205 Conn. 17, 20, 529 A.2d 1297 (1987). The time limits established in General Statutes § 8-26 are mandatory. Finn v. Planning & Zoning Commission, 156 Conn. 540, 544, 244 A.2d 391 (1968).

The plaintiff maintains that because its application was deemed received at the defendant’s November 19, 1991 meeting and the defendant did not approve or deny the application by April 1, 1992, we can look at nothing but the calendar to determine whether a mandamus should issue. We do not agree.

The plaintiff relies on a line of cases that hold that where statutory language is mandatory, the first two requirements for a mandamus are met. Vartuli v. Sotire, 192 Conn. 353, 360, 472 A.2d 336 (1984). Those cases, however, are inapposite to the present case. Vartuli was based on General Statutes § 8-7d (b), the relevant portion of which provided that “ ‘[w]henever the approval of a [coastal] site plan is the only requirement . . . remaining to be met . . . a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt . . . .’’’(Emphasis added.) Id., 358. No other approvals were required in Vartuli or the cases on which Vartuli relies. In the present case, by contrast, the submission of a copy of the plan to the wetlands commission remained to be accomplished. Thus, it was the duty of the trial court [353]*353here to determine if the plaintiff had satisfied the first two mandamus requirements. Golab v. New Britain, supra, 205 Conn. 20.

The plaintiff contends that the trial court ignored the fundamental administrative law principle that examination and evaluation of evidence is the province of the administrative agency and should be overturned by the trial court only in extreme circumstances. The significance of this argument lies in the plaintiffs contention that the defendant’s action in receiving and discussing the application represented factual findings of the defendant that started the clock running and the trial court could not overrule those factual findings. The plaintiff relies on Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 600 A.2d 757 (1991), and Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn. App. 515, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994). The fallacy in this argument is that the cases relied on by the plaintiff are administrative appeals in which the trial court reviewed the agency’s decision in an appellate capacity, hearing the appeal on the record. This is not an administrative appeal. Rather, as a mandamus action, it is a case brought to the Superior Court under its original jurisdiction. General Statutes § 52-485 (a);6 Kiernan v. Borst, 144 Conn. 1, 4-5, 126 A.2d 569 (1956); see Griffin v. Planning & Zoning Commission, 30 Conn. App. 643, 653, 621 A.2d 1359 (1993). Here, the Superior Court, not the administrative agency, is the finder of fact.

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Cite This Page — Counsel Stack

Bluebook (online)
655 A.2d 1164, 37 Conn. App. 348, 1995 Conn. App. LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/par-developers-ltd-v-planning-zoning-commission-connappct-1995.