Opinion
No. CV03-0081040S
May 14, 2004
RULING ON MOTION FOR SUMMARY JUDGMENT (#102)
The plaintiff Jalowiec Realty Associates, LLP, ("Jalowiec") brought this action for a writ of mandamus by way of a complaint filed on February 20, 2003. Before a responsive pleading was filed, Jalowiec moved for summary judgment. Jalowiec claims that, because the defendant Planning and Zoning Commission of the City of Ansonia ("commission") failed to approve its site plan application within sixty-five days after receipt, it has a clear legal right under the provisions of General Statutes §§ 8-7d(b) and 8-3(g) to approval of the site plan as a matter of law and the writ should issue. The commission disputes Jalowiec's claim of entitlement to a writ of mandamus both factually and legally.
Jalowiec's motion was claimed for the short calendar on February 17, 2004 and continued, at the court's request, until March 13, 2004 for hearing. In connection with the hearing, the parties submitted a statement of stipulated undisputed facts and a statement of stipulated disputed facts. On March 19, 2004, the parties provided supplemental submissions requested by the court during the oral argument.
The parties agree on the standards for issuing a writ of mandamus: "The writ is proper only when (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 adequate remedy." (Internal quotation marks omitted; citations omitted). Miles v. Foley, 54 Conn. App. 645, 653, 736 A.2d 180 (1999), aff'd, 253 Conn. 381, 736 A.2d 503 (2000). "Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes." Golab v. New Britain, 205 Conn. 17, 19, 529 A.2d 1297 (1987).
The issue before the court is a narrow one: Has Jalowiec demonstrated that there is no genuine issue of material fact that it is has a clear legal right to inferred approval of the site plan and therefore is entitled to a writ of mandamus as a matter of law or should a full evidentiary hearing be held on its claim of entitlement to the writ? In deciding this narrow issue, the court is cognizant of the inherent tension arising when there is a claim made for the grant of the extraordinary and discretionary relief of mandamus, see Miles v. Foley, 253 Conn. 381, 391, 736 A.2d 503S (2000), by way of a summary judgment motion where the court "must view the evidence in the light most favorable to the nonmoving party." See e.g., Rocco v. Garrison, 268 Conn. 541, 548 (2004).
As stipulated by the parties, the following facts are undisputed: On September 19, 2002, Jalowiec, a Connecticut limited partnership, filed an application for site plan approval with the commission to develop a child daycare facility on the property known as 17 Elm Street, Ansonia, Connecticut (the property). At the time, Jalowiec owned a contractual right to purchase the property and now owns it. The property is located in a Residential B zone, in which child daycare facilities were permitted by the Ansonia Zoning Regulations ("regulations") as a matter of right, subject to the requirements of § 720.12 of the regulations and to site plan approval.
The parties have also stipulated that the following facts are in dispute: "1. That the plaintiff failed to meet all the requirements of the Ansonia Zoning Regulations (the `Regulations'); 2. That there would be potential health hazards resulting from the plaintiff using the Ansonia sewer system as proposed in its site plan; 3. Whether the Ansonia sewer system at the Elm Street sewer line has the physical capacity to handle the flow caused by the proposed daycare facility; 4. Whether there will be a "queuing" or back-up problem within the site drive due to the number of off-street parking spaces proposed by the plaintiff; 5. Whether the alleged "queuing" problem would result in violations of the fire lane ordinance and impede emergency access and other safety and traffic concerns; 6. Whether the plaintiff has "unclean hands" in allegedly: a. failing to accurately represent site line distances to the Commission, b. failing to provide the Commission with an accurate and complete traffic report and c. Withholding from the Commission information regarding alleged negative DOT's (sic) comments regarding alleged site line and vehicle access concerns; 7. Whether the plaintiff's property is located in a historic district subjecting the plaintiff to Certificate of Appropriateness approval from the Historic District Commission."
The application was placed on the agenda for the commission's September 30, 2002 meeting, its first regularly scheduled meeting following the filing of the application. Although not required by the regulations to hold a public hearing, the commission decided to hold a discretionary public hearing which commenced on October 28, 2002 and closed on November 25, 2002. The commission did not render a decision on the application until January 27, 2003 at which time the application was denied. This was more than sixty-five days after the official receipt date of the application. After the sixty-five days had passed, Jalowiec demanded that the commission issue a certificate to approve its application, both before and after the date on which the commission denied the application. To date, the commission has refused to issue a certificate of site plan approval.
Section 510.4.23 of the Ansonia Zoning Regulations expressly provides that all site plans submitted be accompanied by a "Public Sewer Permit from the Ansonia Sewer Commission or a Septic System Permit from the Valley Health Department, where applicable." To date, Jalowiec has not obtained the requisite permit. In addition to site plan review approval and a sewer permit, Jalowiec must also obtain an encroachment permit, also known as a driveway permit, from the State Department of Transportation to access the property from Elm Street, a state highway. See General Statutes § 13a-143a.
Jalowiec claims that General Statutes §§ 8-7d(b) and 8-3(g), read in conjunction, impose a mandatory sixty-five day time limit for a commission to act on a site plan in all cases and that the commission's failure to act within sixty-five days of the submission of the site plan resulted in its inferred or automatic approval. It relies principally on Vartuli v. Sotire, 192 Conn. 353, 472 A.2d 336 (1984) (construing General Statutes §§ 22a-109(e), 8-7d(b) and 8-3(g)) overruled on other grounds, Leo Fedus Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 446, n. 7, 472 A.2d 336 (1993) (zoning board of appeals not subject to automatic approval doctrine), and Carr v. Woolwich, 7 Conn. App. 684 (construing General Statutes §§ ( 8-7d(a) and 8-3(g)), overrruled in part, Leo Fedus Sons Construction Co. v. Zoning Board of Appeals, supra. Neither Vartuli nor Carr, however, stand for the proposition that a zoning commission's failure to act within sixty-five days requires automatic approval of a site plan application in all cases, no matter the factual circumstances. See Gelinas v. West Hartford, 225 Conn. 575, 583-84, 626 A.2d 259 (1993). A decision as to whether a particular case falls within the statutes' sixty-five day time limitation is inherently fact-bound. See Center Shops of East Granby, Inc. v. Planning Zoning Commission, 253 Conn. 183, 190-91, 757 A.2d 1052 (2000); SSM Associates Limited Partnership v. Plan and Zoning Commission, 211 Conn. 331, 336-37, 559 A.2d 196 (1989).
The provisions of General Statutes § 8-7d(b) applicable to this case provide: "Whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for any building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan. The applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed two further sixty-five-day periods, or may withdraw such plan."
General Statutes § 8-3(g) provides, in pertinent part: "The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. If a site plan application involves an activity regulated pursuant to Sections 22a-36 to 22a-45, inclusive, the applicant shall submit an application for a permit to the agency responsible for administration of the inland wetlands regulations not later than the day such application is filed with the zoning commission. The decision of the zoning commission shall not be rendered on the site plan application until the inland wetlands agency has submitted a report with its final decision. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. A certificate of approval of any plan for which the period for approval has expired and on which no action has been taken shall be sent to the applicant within fifteen days of the date on which the period for approval has expired."
In Vartuli, supra, 192 Conn. 353, the Supreme Court read General Statutes §§ 22a-109, 8-7d(b) and 8-3(g) in conjunction to conclude that the legislature had "expressly made approval of a coastal development plan mandatory upon failure to disapprove an application within the specified time period." Id., 192 Conn. 362. Viewing the statutory scheme as mandatory and applying it to the facts before it, the Vartuli court concluded that the applicant was entitled to a writ of mandamus. The Carr court, relying on Vartuli's conclusion that General Statutes § 8-7d(b) was mandatory, concluded that General Statutes § 8-7d(a) was "equally mandatory." Carr v. Woolwich, supra, 7 Conn. App. 695. Ultimately, however, the Carr court concluded that neither § 8-7d(a) nor § 8-7d(b) applied to the factual circumstances before it and held that there was automatic approval of the site plan solely under the provisions of General Statutes § 8-3(g).
As noted by the Appellate Court in October Twenty-Four, Inc. v. Planning Zoning Commission, 35 Conn. App. 599, 605, n. 3, 646 A.2d 126 (1994), Carr remains valid authority regarding the issue of the applicability of subsection (a) or (b) of General Statutes § 8-7d, but its holding "that the automatic approval doctrine applies even in situations where it is not expressly provided for in the General Statutes," was overruled by the Supreme Court in Leo Fedus Sons Construction Co. v. Zoning Board of Appeals, supra, 225 Conn. 432.
In so doing, Carr examined the relationship between General Statutes §§ 8-3(g) and 8-7d(b). It explained that "General Statutes § 8-3(g) refers to the situation where a municipality's zoning regulations require the filing of a site plan as an aid to the determination of whether a proposed use complies with the regulations," id., 696-97, while "General Statutes § 8-7d(b) refers to the situation where . . . approval of a site plan is the only requirement, or the only remaining requirement, under the zoning regulations for a proposed use of property." Id., 697. "By its terms . . . General Statutes § 8-7d(b) does not apply unless the site plan is the only or the last remaining step in the zoning approval process." Id., 696. Similarly, by its terms, General Statutes § 8-3(g) would only apply if a site plan was submitted for the sole purpose of aiding the commission in determining the use's conformity with the zoning regulations. Thus this case may be one, as the commission contends, where Jalowiec is unable to rely on either statute to satisfy the first two elements of mandamus and must establish those grounds by other means. Par Developers, Ltd. v. Planning Zoning Commission, 37 Conn.App 348, 352-54, 655 A.2d 1164 (1995) ("Where the effect of automatic approval would result in a questionable certificate of approval because another law is violated, the plaintiff's right to have the duty performed is far from clear").
In deciding this motion for summary judgment, the court is squarely faced with a claim that there is a genuine issue of material fact as to whether Jalowiec's site plan was the only requirement remaining to be met for approval of its proposed use of the property for a child daycare center, thus subjecting the commission to the time limits of General Statutes § 8-7d(b), whether there were other requirements under the zoning regulations that remained to be met or whether the site plan was submitted solely as aid to the commission pursuant to the terms of General Statutes § 8-3(g). The parties have stipulated that at the time the site plan was submitted, Jalowiec did not submit a public sewer permit, required by § 510.4.23 of the Ansonia Zoning Regulations, and that to date Jalowiec has not obtained that permit or a state encroachment permit. See Stipulated Facts Regarding Plaintiff's Motion for Summary Judgment (filed by fax on March 5, 2004). The parties have also stipulated that whether Jalowiec has failed to meet all the requirements of the Ansonia zoning regulations is a disputed issue of fact. See Stipulated the Plaintiff's Motion for Summary Judgment (filed by fax on March 5, 2004). Thus, the nature and circumstances of Jalowiec's site plan submission in this case are material facts because the fact-finder's conclusions will make a difference in the outcome of the proceedings. See Catz v. Rubenstein, 201 Conn. 39, 48, 513 A.2d 98 (1986); Union Trust Co. v. Jackson, 42 Conn. App. 413, 418, 679 A.2d 421 (1996). When "there are genuine factual determinations to be made about the true characterization of an application for zoning commission approval, the parties must obtain appropriate findings of fact from the trial court." SSM Associates Limited Partnership v. Plan and Zoning Commission, supra, 211 Conn. 336, n. 3. Accordingly, because there are genuine issues of material fact, the motion for summary judgment is denied.
The language of General Statutes § 8-7d(b) is plain and unambiguous, see PA. 03-154: "Whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for any building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan." (Emphasis supplied.) If a submitted site plan is the only requirement to be met or remaining to met, then a commission must act within sixty-five days. However, if an applicant chooses to submit a site plan under circumstances where there are other requirements of the zoning regulations remaining to be met, the legislature has not placed a sixty-five day limit on the commission's ability to act on that site plan. Obviously, if other requirements remain to met under the zoning regulations, the commission's task of assessing a use's conformity with the regulations could be more complicated. While a commission could arguably deny a site plan within sixty-five days on the ground that other requirements remain to be met under the zoning regulations, the statute does not require the commission to do. Nor does the statute mandate inferred approval if the commission fails to act within sixty-five days under these limited circumstances. Moreover, under these very narrow circumstances it does not appear that the provisions of General Statutes § 8-3(g) would apply if the site plan was not submitted as an aid to the zoning commission pursuant to its terms.
LINDA K. LAGER, JUDGE