Opinion
No. CV04 0084442S
January 3, 2005
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
The plaintiff filed a Complaint seeking a writ of mandamus ordering the defendant, the Planning and Zoning Commission of the Town of Beacon Falls, to issue a certificate of approval for the plaintiff's 29-lot subdivision. Here, the plaintiff seeks summary judgment claiming that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
FACTUAL BACKGROUND
On September 17, 2003, the plaintiff, Babs Corporation, filed an application with the defendant, Beacon Falls Planning and Zoning Commission (hereinafter "Commission"), seeking approval for a 29-lot subdivision known as Eagle Ridge subdivision. The Commission officially accepted the application at its meeting on September 17, 2003. At that meeting, the Commission required the plaintiff to submit an application to the Beacon Falls Inland Wetlands Commission for a report. The Inland Wetlands Commission approved the permit application on November 12, 2003.
On November 20, 2003, the Commission scheduled a public hearing on the plaintiff's Eagle Ridge application for December 8, 2003. On the date of the scheduled hearing, the plaintiff questioned the legality of the public notice published in the newspaper concerning the hearing and informed the Commission that it would not make any presentation at the scheduled hearing. The Commission cancelled the meeting and subsequently rescheduled the public hearing to December 29, 2003.
The plaintiff presented its application at the public hearing on December 29, 2003. The public hearing was continued to January 15, 2004. At the continued hearing on January 15, 2004, the plaintiff submitted an approval from the Inland Wetlands Commission that had been obtained in November 2003. Subsequently, the Commission denied the plaintiff's Eagle Ridge application at its February 19, 2004 meeting. The Commission's stated reason was that the application failed to conform to the Beacon Falls Subdivision Regulations. The Commission found that the application failed to comply with Sections 4.2B and 4.2D of the regulations in that the plan called for a dead-end street in excess of one thousand feet.
The plaintiff appealed the denial of the subdivision application to the Superior Court. Additionally, the plaintiff commenced the instant mandamus action alleging that it is entitled to approval of its subdivision application because of the Commission's failure to act in a timely manner. Here, the plaintiff seeks summary judgment on its mandamus action.
LEGAL DISCUSSION
Connecticut Practice Book § 17-49 provides that "[t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
In deciding the plaintiff's motion, this court must view the evidence in the light most favorable to the Commission. See Appleton v. Board of Education, 254 Conn. 205, 209 (2000). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 832, 751 (1995). "[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the nonmoving party." (Internal quotation marks omitted). Id., 752. "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original.) Id. "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500 (1988).
In the underlying action here, the plaintiff seeks a mandamus ordering the Commission to issue a certificate of approval of the Eagle Ridge subdivision plan. The plaintiff argues that it is entitled to approval of its application for subdivision because the Commission failed to take action within the times specified in C.G.S. § 8-26d. The plaintiff contends that the Commission had 65 days from the filing of the application to commence the public hearing, 35 days to complete the public hearing, and 65 days to act subsequent to the public hearing. The Commission contends that it acted in a timely manner. The Commission contends that, because the subdivision involved land regulated as inland wetlands pursuant to C.G.S. § 38-26, it could not decide until the Inland Wetlands Commission had submitted a report with its final decision. Because the report from Inland Wetlands was not received until January 15, 2004 at the Commission's meeting, and under § 8-26d(d) the Commission had 35 days thereafter to render its decision, the Commission contends that it did render its decision in a timely manner.
Effective October 1, 2003, Public Act 03-177, amended the General Statutes so that the time tables relating to all municipal land use agencies are the same, as set forth in C.G.S. § 8-7d. P.A. 03-177 was effective only as to subdivision applications filed after October 1, 2003. Thus, C.G.S. §§ 8-26 and 8-26d, as they existed prior to October 1, 2003, apply rather than Public Act 03-177.
This court finds that these issues of timing of the various events and actions are genuine issues of material fact.
In addition, the Commission contends that approval of the subdivision would violate a Beacon Falls zoning regulation and create a threat to the public health, safety and welfare. In denying the application for subdivision, the Commission noted that the application failed to comply with Beacon Falls subdivision regulations in that one street as designed is a permanent cul-de-sac in excess of 1,000 feet. The stated purposes of the regulation are for greater convenience to traffic and more effective police and fire protection.
A party seeking a writ of mandamus must establish the following: 1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; 2) the party applying for the writ has a clear legal right to have the duty performed; and 3) there is no other specific adequate remedy. Miles v. Foley, 253 Conn. 381, 391 (2000); Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 235 (2002). Even if the plaintiff satisfies the three criteria for issuance of a writ, issuance is not automatic. "In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity." Hennessey v. Bridgeport, 213 Conn. 656, 659 (1990).
There may be extraordinary circumstances which will militate against the issuance of the writ. Hackett v. New Britain, CT Page 85 2 Conn.App. 225, 229 (1984) (granting writ would reward fraud and promote public injustice). The effects upon non-parties also must be considered. Meredith v. Police Commission, 182 Conn. 232 (1982).
Applying the foregoing principles to the facts of the present case, this court finds that the motion for summary judgment should be denied. Since equitable principles apply to the underlying action, even if the plaintiff can establish the criteria for issuance of the writ, other material facts may militate against issuance of the writ. Specifically, if the Commission can show that issuance of a writ of mandamus to compel the approval of the subdivision would create a risk to the public health, safety and welfare, equity might preclude issuance of a writ of mandamus.
CONCLUSION
Based on all of the foregoing, the plaintiff's Motion for Summary Judgment is denied.
The Court
By Hartmere, J.