Opinion
No. CV03 081040S
December 28, 2004
MEMORANDUM OF DECISION
On February 20, 2003, the plaintiff Jalowiec Realty Associates, L.L.P. (Jalowiec), filed a complaint against the defendant, the planning and zoning commission of the city of Ansonia (commission), seeking a writ of mandamus directing the commission to issue a certificate of approval for a site plan application.
The stipulated facts reveal the following. On September 19, 2002, Jalowiec filed an application for site plan approval with the commission to develop a child day care facility on property known as 17 Elm Street in Ansonia, Connecticut (property). At the time, Jalowiec owned a contractual right to purchase the property and is now the owner of the property. The property is located in a residential B zone, in which child day care facilities are permitted by the Ansonia zoning regulations (regulations) as a matter of right, subject to site plan approval. The plaintiff did not file a sewer permit with its site plan application nor did it receive sewer approval on January 27, 2003.
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 of approval of its application.
On May 14, 2003, the court, Lager, J., denied the plaintiff's motion for summary judgment. In its motion for summary judgment, the plaintiff claimed it had a clear legal right to a mandamus because the commission failed to approve its site plan approval within the sixty-five day time limit set forth in General Statutes §§ 8-7d(b) and 8-3(g). The court was faced with a claim that there was "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 day care 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)." (Footnotes omitted.) Jalowiec Really Associate v. Planning and Zoning Commission of Ansonia, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 03 0081040 (May 14, 2004, Lager, J. The court also stated that "whether Jalowiec has failed to meet all the requirements of the Ansonia zoning regulations is a disputed issue of fact." Id.
On September 28, 2004, this court held a hearing on the plaintiff's claim for a writ of mandamus. Both parties filed briefs by October 29, 2004.
The plaintiff claims that under General Statutes §§ 8-7d(b) and 8-3(g), the commission's failure to issue a certificate of approval within the mandatory sixty-five day time limit resulted in the automatic or inferred approval of its application. The failure to file a sewer permit in conjunction with its site plan approval, the plaintiff argues, is immaterial where there is inferred approval. Further, the plaintiff contends that the filing of a sewer permit with its site plan application was neither applicable nor appropriate because the Ansonia water pollution control authority (WPCA) will not approve a sewer connection until the commission has issued a site plan approval.
The commission disputes the plaintiff's claim for a writ of mandamus on the grounds that the commission's decision was timely because it was rendered within a new sixty-five day period that allegedly commenced after a revised plan was submitted. The commission also argues that because the plaintiff never obtained a sewer permit from the WPCA, an approval of the site plan would result in a violation of the zoning regulations. The commission further contends that there was ample evidence to support the commission's concerns regarding the application's conformity with safety, traffic and noise regulations.
Mandamus will issue only if the plaintiff can establish that: "(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." (Internal quotation marks omitted.) Miles v. Foley, 54 Conn.App. 645, 653, 736 A.2d 180 (1999), aff'd, 253 Conn. 381, 752 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).
"Even satisfaction of this demanding test does not, however, automatically compel issuance of the requested writ of mandamus . . . In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity." (Citation omitted.) Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990). Consequently, a writ of mandamus "may be refused for reasons comparable to those which would lead a court of equity, in the exercise of a sound discretion, to withhold its protection of an undoubted legal right." United States ex rel. Greathouse v. Dern, 289 U.S. 352, 359, 53 S.Ct. 614, 77 L.Ed 1250 (1933). "These principles govern all mandamus actions, even those involving presumed approvals of site plans." Summitwood Associates Phase IV v. Planning Commission, Superior Court, judicial district of New Haven, Docket No. 391584 (August 7, 1998, Blue, J.) (22 Conn. Law. Rptr. 660, 664) citing Par Developers, Ltd. v. Planning Zoning Commission, 37 Conn.App. 348, 353-54, 655 A.2d 1164 (1995).
Jalowiec argues that it is entitled to a certificate of approval for its application under General Statutes §§ 8-3(g) and 8-7d(b). Section 8-3(g) provides, in pertinent part, that "[a]pproval 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." Section 8-7d(b) provides, in pertinent part, that "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 added.) Likewise, § 510.7 of the regulations provides that "[t]he commission shall act on each site plan within sixty-five (65) days of its official submission date."
By its terms, § 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." (Internal quotation marks omitted.). Jalowiec Realty Associates v. Planning and Zoning Commission of Ansonia, supra, Superior Court, Docket No. CV 03 0081040. Similarly, by its terms, § 8-7d(b) "does not apply unless the site plan is the only or the last remaining step in the zoning approval process." (Internal quotation marks omitted.) Id. In the present case, there are other requirements that remain to be accomplished. Jalowiec may rely only on § 8-3(g) for automatic approval of its application. Section 510.2.1 of the regulations provides that one of the objectives of the site plan is "[t]o determine compliance with all appropriate regulations."
The parties stipulated that the official receipt of the subject application was September 30, 2002. (Stipulated Facts, 09/21/04.) The plaintiff did not consent to an extension of the sixty-five day period, which expired on December 5, 2002. (Stipulated Facts, 09/21/04.) The commission did not render a decision on the application until January 27, 2003. (Stipulated Facts, 09/21/04.) The court finds that under § 8-3(g), the commission was required to render a decision within sixty-five days after receipt of the site plan. Accordingly, the commission's decision of January 27, 2003 denying the application was untimely.
While the commission argues that a new sixty-day period began upon the submission of a revised application, there is no support for such a finding. Nor is there evidence that the plaintiff waived the sixty-five day period.
The court recognizes that it must balance the commands of positive law with the discretion inherent in equity. On the one hand, § 8-3(g) expressly provides that approval of an application shall be presumed if a decision to deny or modify a site plan application is not made within the statutory time frame. SSM Associates Limited Partnership v. Planning Zoning Commission, 211 Conn. 331, 335, 559 A.2d 196 (1989). "A failure by the [c]omission to act effectively within the time parameters arguably results in the approval of the application by operation of law." Summitwood Associates Phase IV v. Planning Commission, supra, 22 Conn. Law. Rptr. 664 citing Caldrello v. Planning Board, 193 Conn. 387, 392, 476 A.2d 1063 (1984). On the other hand, the plaintiff seeks the discretionary relief of mandamus. "[M]andamus, although it is a legal remedy, is not awarded as a matter of right but is within the exercise of the sound discretion of the court and . . . its allowance is controlled by equitable principles." (Citations omitted; internal quotation marks omitted.) Sullivan v. Morgan, 155 Conn. 630, 635, 236 A.2d 906 (1967).
Section 720.12.2 of the regulations requires that the maximum number of children to be cared for in a child day care facility located in a residential district shall not exceed twelve. The subject application in this case proposed to provide care for 100 children at the facility. "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." Par Developers, Ltd. v. Planning Zoning Commission, 37. Conn.App. 348, 354, 655 A.2d 1164 (1995); Camm v. Hart, 6 Conn.App. 284, 289, 504 A.2d 1388 (1986); Shapero v. Zoning Board, 192 Conn. 367, 371, 472 A.2d 345 (1984). As the Appellate Court observed in Par v. Developers, supra, "[n]umerous cases have denied writs of mandamus where automatic approval conflicted with other laws." Par Developers, Ltd v. Planning Zoning Commission, supra, 37 Conn.App. 354. If this court were to issue a writ of mandamus, the order would presumably issue in violation of the law. An order requiring the commission to immediately approve the site plan would conflict with the town regulations governing child day care facilities.
The court also notes that § 510.4.23 of the 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." The parties have stipulated that at the time the site plan was submitted, the plaintiff did not submit a sewer permit. While the plaintiff argues that the Ansonia WPCA will not issue final approval for a sewer connection until the commission has issued a site plan approval, the plaintiff nonetheless did not comply with § 510.4.23 of the regulations. Similarly, the commission failed to enforce its own regulations.
Because a mandamus is not a writ issued as a matter of right, the court must consider "the public interests which may be implicated." (Internal quotation marks omitted.) Summitwood Associates Phase IV v. Planning Commission, supra, 22 Conn. Law. Rptr. 664. "[I]f the right to the issuance of the writ is asserted contrary to the public interest, the court might refuse its aid in mandamus proceedings." (Internal quotation marks omitted.) Hackett v. New Britain, 2 Conn.App. 225, 229, 477 A.2d 148; cert. denied, 194 Conn. 805, 482 A.2d 710 (1984). It should "act in view of all of the facts and circumstances . . . and with due regard to the consequences." (Citation omitted; internal quotation marks omitted.) Summitwood Associates Phase IV v. Planning Commission, supra, 22 Conn. Law. Rptr. 664.
In the present case, the commission denied the subject application for several reasons: (1) the negative impact on the neighborhood and public safety as well as the creation of traffic hazards and congestion; (2) the proposed building being 123 feet long, 60 feet wide and 35 feet high would be out of character, nature and harmony with the neighborhood of modest size homes; (3) the proposed building dwarfs most surrounding homes to a degree that no transition zone to mitigate the intensity of impact is possible; (4) the building does not enhance the appearance and attractiveness of the neighborhood or the community; (5) there are no plans or space to erect noise barriers on the site to mitigate and minimize noise generated by cars, children out at play, which is a potential nuisance to neighbors; and (6) the proposal is in conflict with § 720.12.2. The court finds the public safety, traffic hazards and noise issues associated with the application, sufficient public interests, to tip the scale in favor of exercising its discretion based in equity.
Based on all of the facts and circumstances, the court is not persuaded that it should overlook § 720.12.2 and the public interests implicated here. As stated earlier, a mandamus will not issue to compel a violation of the law; Par Developers, Ltd. v. Planning Zoning Commission, supra, 37 Conn.App. 354; nor will it issue contrary to public interest. Hackett v. New Britain, supra, 2 Conn.App. 229.
The plaintiff's application for a writ of mandamus is denied.
The Court
By Curran, JTR